Strasbourg, 1 February 2006

CCJE/REP(2006)25

English only

CONSULTATIVE COUNCIL OF EUROPEAN JUDGES

(CCJE)

QUESTIONNAIRE ON

“ The role of judges in striking a balance

between protecting the public interest and human rights

in the context of terrorism”

Reply submitted by

the delegation of Estonia

ANSWERS TO THE QUESTIONNAIRE ON:

"The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism"

approved by the CCJE

at its 6^th meeting (23-25 November 2005)

A.     Availability of information and documentation on all international legal instruments relevant to judicial activities (point IV (d) of the framework action plan)

A.1.     Does your country have schemes to provide judges with initial and in-service training in international and European law? If it does, please provide a list of those schemes, specifying the subjects dealt with over the last year. Please indicate the number of judges concerned by these schemes, distinguishing between initial and in-service training, and the total number of judges in your country.

Training programmes about international and EU Law

Estonian Law Centre Foundation has been providing training on international and EU law for the judges since 1996.

Currently the training is based on an EU Phare project “Building Competence in European Law in the Estonian Judiciary” (implemented in 2004-2006). One element of this project has been the so-called specialist training which is aiming to establish a group of specialists or tutors among the judges to ensure the continuance of EU law competence in the courts and maintain the continuity of this course in the judges’ training programme. The specialists’ group training includes advanced courses in EU law, study visits to international organisations, etc.

In the framework of the fore mentioned EU Phare project training takes place at two levels: advanced and expert level. It is expected that judges should pass both levels. In 2005, for example, there were 52 participants in the advanced level training (incl. court consultants) and 55 participants in the expert level training (incl. court consultants as well as some prosecutors and advocates).

In Estonia there are approximately 250 judges.

Advanced level training is designed to provide an overview of the basic principles and domains of EU law, which are required for proceeding the actions based on EU law and for applying EU law (includes sources of EU law, the principle of primacy, the principles of direct and indirect effect, state liability for violation of EU law, procedural autonomy of the Member States and legal remedies at national level, human rights’ regulation in the EU, direct actions to the European Court of Justice (ECJ), introduction to the four internal market freedoms).

Expert level training is a follow-up course to the first part of the advanced level training on EU law and it is designed to reflect in more details the issues related to the application of EU law and to offer a thorough discourse on various fields of substantive law in the form of case studies (includes in addition to more specific discussion of the topics from the first part also the analysis of judicial practice in different fields of substantive law – free movement of goods, services and persons, freedom of establishment, prohibition of discrimination, consumer protection law, competition law, etc).

In addition to the abovementioned training courses in the framework of the Phare programme, the topic of EU law has been integrated in other judges’ training programs as well (civil law, administrative law and criminal law).

The number of lesson hours in EU law varies in different years. There were 18 training days in 2005 with approx. 126 lesson hours within the framework of the separate EU law programme (the Phare project). However, as already mentioned, issues relating to EU law were discussed also in other judges’ training courses included in the general training programme for the judges.

Besides obligatory training, Estonian judges take part of different conferences about EU and international law. For example last year there were 2 major conferences about Treaty Establishing a Constitution for Europe and European Law. These conferences were organised by Estonian European Law Association.

A.2.     Do all judges periodically receive full information on recent legislation and case-law at the European and international levels, without it being necessary for them to perform their own research in these matters? If they do, please indicate what types of documents are sent direct to each judge by the national authorities (e.g. official gazettes, legal periodicals). Please also specify what information is available on paper and what is provided in electronic form (CD-Rom, for instance).

Estonian judges have the duty to constantly improve their knowledge and skills. There are different courses on European and international law in the training programmes each year. Those programmes also cover the topics that  concern recent legislation and case-law.

Estonian Law Centre Foundation, which organizes in-service training for judges, has published different study materials on those topics each year. In 2005 five different study materials for judges concerning this particular subject were published:

▪    "Asking Preliminary Ruling form European Court of Justice" (dr iur Julia Laffranque),

▪    “Intellectual Property in European Community” (Gwendal Barbaut),

▪    "Competition Law in European Community" (Michel Waelbroeck),

▪    "Consumer Protection Law in European Community" (Gilles Paispant) and

▪    "Labour Law in European Community" (Marie-Odile Theoleyre).

Judges also have the opportunity to get to know European legislation and ECJ rulings on the website of European Union, where this kind of information is available in Estonian. It is also possible to subscribe for the Official Journal of the European Union, which is printed in Estonian and which contains recent European legislation, but not many people have done it.

Since 1 May 2004 the judgments of ECJ are also available in Estonian. This is unfortunately not the case with the previous decisions of the ECJ. However, the Ministry of Justice together with the Estonian Legal Translation Centre (now Estonian Legal Language Centre), the PHARE programme, the British Embassy in Estonia and the Juura Publishing House published in the years 2001 and 2003 two volumes of case book of the most important cases of the ECJ together with an introduction about the structure and work of the ECJ.[1] Another project is ongoing in order to translate into Estonian the rest of the important judgements of the ECJ rendered before 1 May 2004.

Everyone has access to the second part of the national State Gazette, which contains the ratification Acts of the international treaties and conventions.

In addition, according to the established practice, the Ministry of Foreign Affairs forwards the judgments and decisions of European Court of Human Rights concerning Estonia and other most important judgments of the Court to other ministries with a request to disseminate the judgments among the state agencies concerned. Subsequently, the Ministry of Justice forwards the judgments to the courts of lower instances and Prosecutor's Office. The Supreme Court as an administratively independent state institution receives the judgments of the Human Rights Court directly from the Ministry of Foreign Affairs.

The Ministry of Foreign Affairs also forwards the judgments of the Court concerning Estonia to the Council of Europe Tallinn Information Centre[2] for translation into Estonian and publication on their web page. Judgments are also available to the public at Estonian National Library. Additionally, in 2003, a bulletin was published containing comments on the Human Rights Court case-law and full texts of judgments concerning Estonia. The bulletin has been distributed to law firms and Bar Association free of charge. The media has also published articles in newspapers on some judgments of the Court concerning Estonia.

Generally, many judges quite often use electronic version of the texts of the courts and official search portals to receive information about case-law at the European and international level.[3]

Judges receive information about decisions, judgements, reports and resolutions of the Human Rights Court, Commission of Human Rights and the Committee of Ministers by using the European Court of Human Rights Portal (HUDOC)[4] and search for constitutional case-law in the database created by the Venice Commission (CODICES)[5].

Additionally, the Estonian Law Centre Foundation provides electronic information service called Digesta[6]. This service contains a possibility to get regular news about case-law of European Court of Justice to your personal e-mail address. Digesta is not free of charge.

A.3.     Do judges have an opportunity to attend foreign language courses? Are these courses free of charge or state-subsidised? Does each court have legal translation facilities?

Language courses for judges

Language training is not a part of the State-Budget-funded obligatory training programme for the judges. But besides obligatory training many judges take part in different courses that are financed from the court’s own budget for training courts' officials and judges. Some judges take part in special language courses tailored for civil servants. Usually these special courses are partly or entirely financed from the referred courts' training budget.

There are no official statistics but it seems that many judges attend English courses. Since Estonia joined EU some judges have started to study French.

Legal translation facilities in the courthouse

According to art 6 of the Constitution of the Republic of Estonia the official language of Estonia is Estonian. According to different procedural Acts the language of court proceedings shall be Estonian. If a participant in proceedings or his or her representative does not know the language of the proceedings, then an interpreter or a translator shall be involved in the proceedings. Therefore almost every court has a Russian translator for cases where one of the parties belongs to the Russian speaking minority. In the Supreme Court there are two translators - one for English and one for Russian.

All documents which the parties are requested to include in a court file must be in Estonian or translated into Estonian by themselves. According to art 34 of the State Legal Aid Act, state provides translation assistance in connection with proceedings regarding matters in court of member state of European Union and other body resolving disputes.[7]

B.        Dialogue between national and European judicial institutions (point IV (c) of the framework action plan)

B.1      What means does your country use to enhance dialogue between the national courts and the European courts? Please provide information on training dispensed in this connection over the last year.

Most common activities to enhance the dialogue between the national and the European courts are conferences and trainings. The representatives of European courts in Estonia are the two former Chief Justices of the Estonian Supreme Court - Uno Lõhmus and Rait Maruste, who are now members of respectively the ECJ and the European Court of Human Rights.

The last example of dialogue between the national and the European courts is from the 20th of January 2006. The conference on "Common European legal space and the role of courts in shaping it" was held and several Estonian judges together with Estonian judges of European Courts had an open discussion on the topic.

The Supreme Court of Estonia has invited both presidents of the two European courts to visit Estonia. This summer Prof Luzius Wildhaber, the President of the European Court of Human Rights will come to Estonia. Besides meeting with the justices of the Supreme Court, he will also have meetings with the Minister of Justice, Minister of Foreign Affairs, the Chancellor of Justice (Ombudsman) and acknowledged legal scholars.

B.2.     Does your country hold events bringing together the national courts and the European courts? Who participates in these gatherings? How are their results passed on, so as to enhance their reach?

Estonian judges participate in the regular study visits to the European courts in Strasbourg and Luxembourg. Judges have also had opportunities to visit the courts of other European states. The latter has been sponsored by different European Union associations of which the Estonian Supreme Court is a member (Association of the Councils of State and Supreme Administrative Jurisdictions of the EU and Network of the Presidents of the Supreme Judicial Courts of the EU).

Currently, one law clerk of the Administrative Law Chamber of the Supreme Court of Estonia is working at the Court of Justice of European Communities as a national expert.

Also, the judges of Estonia and of other European states are often brought together in different seminars and conferences in Estonia and abroad.

In Estonia for example, in April 2006, there will be a seminar supported by TAIEX Office of the European Commission for Estonian, judges, which will concentrate on practical problems of asking a preliminary ruling from the ECJ. TAIEX has organised conferences on similar subjects for the judges of the new Member States of the European Union before.

In June 2006, a big forum for all judges of Estonia shall be organised by the Supreme Court. First day of this forum will concentrate on the European law and the role of courts in it.

During such trainings, seminars and conferences information about European law and courts is passed on to judges. But although these events and activities are open to all judges, there are often the same people present – the ones who are more deeply interested in these particular subjects.

Part C: Application by national courts of the European Convention on Human Rights and the case-law of the European Court of Human Rights, European community law and other instruments.

C.1. In your country what rank do the following sources of law enjoy in the hierarchy of law in particular in relation to constitutional provisions and ordinary legislation? (The European Convention on Human Rights; EU treaties; The case-law of the European Court of Human Rights and the Court of Justice of the European Communities; International treaties).

Please cite the relevant constitutional provisions or case-law.

The hierarchy

If there were in the constitutional system of Estonia the possibility to place the sources of law in a hierarchy, the uppermost position would probably be occupied by the treaties of the European Union, followed by the Constitution of the Republic of Estonia and the generally recognised principles and rules of international law and, lower, by the European Convention on Human Rights and other international treaties ratified by the Parliament. Followed by the ordinary national laws on lower levels. Still, it is an object of scholarly dispute[8] (especially what concerns the position of other international treaties) and no clear answer exists. For example, some of the rights and freedoms provided by the European Convention on Human Rights could be also considered as general principles of law. Quite questionable and rather unclear is the position of the case-law of the European Court of Human Rights and of the Court or Justice of the European Communities. So, even if the case-law of the latter courts has been used for supporting arguments or for interpretation purposes in several judgements of the Estonian courts, especially the Supreme Court of Estonia, the exact position of the this case-law in our legal system has not been decided (yet).

In addition, in several judgments, for example in a judgement of the 21st of January 2004,[9] the Constitutional Review Chamber of the Supreme Court of Estonia has also supported its argumentation by quoting the Charter of Fundamental Rights of the European Union.

Relevant provisions and case law

1) Article 3 2^nd sentence of the Constitution of the Republic of Estonia specifies the position of generally recognised principles and rules of international law in Estonian legal system:

Article 3. Generally recognised principles and rules of international law are an inseparable part of the Estonian legal system.

2) As for the position of international treaties, Chapter IX (Foreign Relations and International Treaties) of the Constitution of the Republic of Estonia reads as follows (relevant abstracts):

Article 120. The procedure for the relations of the Republic of Estonia with other states and with international organisations shall be provided by law.

Article 123. The Republic of Estonia shall not enter into international treaties which are in conflict with the Constitution.

If laws or other legislation of Estonia are in conflict with international treaties ratified by the Riigikogu[10], the provisions of the international treaty shall apply.

3) Concerning the position of European Union law, the Constitution of the Republic of Estonia Amendment Act (in force from the 14th of December 2003) stipulates:

            Article 1. Estonia may belong to the European Union in accordance with the fundamental principles of the Constitution of the Republic of Estonia.

            Article 2. As of Estonia’s accession to the European Union, the Constitution of the Republic of Estonia applies taking account of the rights and obligations arising from the Accession Treaty.

4) Already in 1994 (Estonia being a member of neither the Council of Europe nor the European Union), in a judgment of 30 September (no III-4/A-5/94) the Constitutional Review Chamber of the Supreme Court of Estonia stated that general principles of law developed by the institutions of the Council of Europe and the European Union should be considered when creating the general principles of law for Estonia:

In democratic states the law and general principles of law developed in the course of history are observed in law-making as well as in law application, including the administration of justice. In creating the general principles of law for Estonia the general principles of law developed by the institutions of the Council of Europe and the European Union should be considered. These principles have their origin in the general principles of law of the highly developed legal systems of the member states.

/…/ The validity of the principles of a state based on democracy, social justice and the rule of law means that in Estonia those general principles of law recognised within the European legal systems are in effect. According to the Preamble of the Constitution, the Estonian state is founded on liberty, justice and law. In a state founded on liberty, justice and law the general principles of law are in force. Consequently a statute which is inconsistent with these principles is also in violation of the Constitution.

5) As indicative of the position of the European Convention for the Protection of Human Rights and Fundamental Freedoms the judgement of the General Assembly of the Supreme Court of the Republic of Estonia of 6 January 2004 (no 3-1-3-13-03) states the following:

31. Article 123(2) of the Constitution establishes that if laws or other legislation of Estonia are in conflict with international treaties ratified by the Riigikogu, the provisions of the international treaty shall apply. On 13 March 1996 the Riigikogu passed "Convention for the Protection of Human Rights and Fundamental Freedoms (as amended by protocols Nos. 2, 3, 5 and 8) and additional protocols 1, 4, 7, 9, 10 and 11 Ratification Act", proclaimed by the President of the Republic on 22 March 1996 (RT II 1996, 11/12, 34). Thus, the European Convention for the Protection of Human Rights and Fundamental Freedoms constitutes an international treaty, ratified by the Riigikogu, which has priority over Estonian laws and other legislation.

/…/ the Supreme Court points out that proceeding from the aforesaid the European Convention for the Protection of Human Rights and Fundamental Freedoms constitutes an inseparable part of Estonian legal order and the guarantee of the rights and freedoms of the Convention is, under Article 14 of the Constitution, also the duty the judicial power. The general assembly argues that the best fulfilment of this duty would require the amendment of procedural laws so that it would be unambiguous whether and in which cases and how the new hearing of a criminal matter should take place after a judgment of the European Court of Human Rights.

6) As indicative of the position of the European Union law, the judgement of the General Assembly of the Supreme Court of the Republic of Estonia of 19 April 2005 (no 3-4-1-1-05) reads as follows:

49. There are different possibilities for bringing national law in conformity with the European Union law, and neither the Constitution nor the European Union law provide for the existence of constitutional review proceedings for this purpose. The European Union law has indeed supremacy over Estonian law, but taking into account the case-law of the European Court of Justice, this means the supremacy upon application. The supremacy of application means that the national act which is in conflict with the European Union law should be set aside in a concrete dispute (see also joint cases C-10/97 until C-22/97, Ministero delle Finanze vs. IN.CO.GE.'90 [1998] ECR I-6307). Pursuant to Article 226 of the Treaty establishing the European Community, the Commission, if it considers that a Member State has failed to fulfil an obligation under this Treaty, including not bringing national law into conformity with the European Union law, may bring the matter before the Court of Justice. This does not mean that such abstract review procedure over national law should exist on the national level. Thus, the Supreme Court will not be able to examine the petition of the Chancellor of Justice to the extent that the Chancellor of Justice requests, on the basis of Article 19 of the Treaty establishing the European Community and directive 94/80/EC, that Article 5(1) of the Political Parties Act be declared invalid.

50. The legislator is competent to decide whether it wants to regulate the procedure for declaring invalid Estonian legislation which is in conflict with the European Union law /…/

7) In addition, according to the recent amendment to the Constitutional Review Act[11] the Supreme Court shall fulfil the requests of the Riigikogu (Parliament) to give an opinion on how to interpret the Constitution of the Republic of Estonia in accordance with the spirit of the European Union law. In January 2005 the first request on this basis was filed, concerning the issue of constitutionality of the transition of the Republic of Estonia to the Euro.   

C.2.     Does your country's case-law recognise the value - at least for interpretation purposes - of Council of Europe recommendations and resolutions?

Yes, in Estonia we recognise the value of Council of Europe recommendations and resolutions, especially for interpretation purposes. The Supreme Court of Estonia has invoked the Council of Europe recommendations in several judgements (at least seven times since 2001).

For example, last year the Supreme Court used the recommendations of the Council of Europe Committee of Ministers in two judgements for interpretation purposes:

1) Administrative Law Chamber used Rec(2000)21, emphasising that the Bar Association has an important role in providing and maintaining the high competence level of their members;[12]

2) Constitutional Review Chamber used Rec(2004)11 on legal, operational and technical standards of e-voting.[13]

C.3.     If the European Court of Human Rights were to hold that certain provisions of your country's legislation violate the ECHR, would your national courts be permitted not to apply those provisions? Apart from execution of the Court's judgments by the government, do the national courts have authority to prescribe their own measures implementing the Court's decisions?

Article 123 (2) of the Constitution of the Republic of Estonia establishes that if laws or other legislation of Estonia are in conflict with the international treaties ratified by the parliament, the provisions of the international treaty shall apply. Estonian parliament ratified the European Convention on Human Rights (Convention) in 1996, thus the Convention constitutes an international treaty ratified by the parliament, which has priority over national legislation.

Thus, the rights enacted in the Convention, as interpreted by the European Court of Human Rights, should be binding and directly applicable for Estonia[14]. Probably the courts would be entitled not to apply these Estonian provisions, which are stated to be in conflict with the Convention by the European Court of Human Rights. Theoretically it could even lead to a possibility that the courts of lower instances interpret these provisions as unconstitutional, do not apply these, and forward their judgement to the Supreme Court of Estonia for constitutional review. No such practise has nevertheless yet occurred.

The answer to the second half of the question is not merely theoretical, because due to a gap in the legislation such practise has in fact really taken place. The Supreme Court of Estonia has satisfied the claims of individuals and re-opened proceedings in three cases (two in criminal matters and one in administrative matter) based on the judgements of the European Court of Human Rights condemning Estonia for violations of the Convention.[15]

The Supreme Court relied in these cases on article 14 of the Constitution, which proclaims that the guarantee of rights and freedoms is the duty of the legislative, executive and judicial powers. The court stated that the best fulfilment of this duty would require the amendment of procedural laws so that it would be unambiguous whether and in which cases and how the new hearing of a criminal matter should take place after a judgement of the European Court of Human Rights, but although that has not been done, it does not give rise to the conclusion that the Supreme Court is not competent to hear the petitions of individuals.

In reasoning for the re-opening of the cases the Supreme Court held that

-          the violation of the rights of the individual was still continuing,

-          the violation was material (essential) enough to re-open the court procedure,

-          no public interest in remaining in force of the binding court judgement appeared that would prevail the interest of individual in the proceeding of its action and

-          there were no other effective possibilities to remedy the violation of the rights.

C.4.     Where legislation violating provisions of the ECHR has been applied in legal proceedings concluded by a final, non-appealable decision, are the following remedies available in your country before a possible application to the Court in Strasbourg:

- a direct application for reopening of the proceedings?

- lodging of a claim for compensation?

Please specify whether national law affords solutions of this kind which are solely confined to certain violations of the ECHR, such as legal proceedings which have breached the reasonable time requirement.

 

There exists no answer to the question concerning the re-opening of a case before possible application to the Court in Strasbourg, neither in written law, nor in legal doctrine in Estonia. The Estonian procedural laws however able re-opening of a case, the grounds for review are mostly:

essential facts which existed at the time the decision was made but were not known and could not have been known to the petitioner;

a court judgment which has entered into force in a criminal matter establishing the knowingly false testimony of a witness, knowingly wrong expert opinion of an expert, knowingly false interpretation or translation, or that documents or evidence were falsified;

in civil and administrative cases a court judgment which has entered into force in a criminal matter establishing that a party or other participant in the proceeding, or a representative of a party or other participant in the proceeding, or a judge committed a criminal offence in the hearing of the matter;

the annulment of a decision which constitutes the basis of the decision the review of which is requested (See the Codes of Administrative Procedure and of Civil Procedure article 75 and respectively article 702).

In the case if there exists already a Strasbourg Court decision, the following applies to the re-opening of a case: in general national laws do not allow applications for re-opening the proceedings or lodging claims for compensation after a judgement of the European Court of Human Rights in all areas.

However, quite recently (since 1 January 2006) it has been made possible in civil matters to apply for re-opening of the court proceedings in Estonia after the Court in Strasbourg has found a violation of the Convention or its protocols in course of making a judgement and the violation cannot be reasonably eliminated or compensated in other way than through a new hearing of this matter. The legislator enacted this new ground for reviewing a judgement quite easily and without big public discussion together with enacting a new Code of Civil Procedure. [16]

In criminal, misdemeanour and administrative matters currently such possibilities do not exist in the national legislation. The applications for re-opening the proceedings and lodging claims for compensation can only be possible with a supportive interpretation of the Supreme Court. (see answer to the question C.3).

Nevertheless, there is a draft Act in the Parliament since 2004[17] which gives legal grounds for applying for re-opening of court procedures in all areas after the Human Rights Court judgement. There have of course been political discussions concerning the unpredictability of the number of complaints and state expenses due to the new possibility of re-opening the proceedings.

In law journals a conclusion has been expressed that in order to fulfil the obligations assumed by participation in the international jurisdiction Estonia has to adjust its positive law. Questions about re-opening the court proceedings are connected, in criminal matters, for example with the time limits and evidence; in group crimes also with the fault of the other participants of the proceeding who did not submit a claim to the Strasbourg court etc. In re-opened civil or administrative matters the interests of the third parties acting in good faith may be significantly harmed. Therefore, depending on the substance and the correlations of a matter, the contested national judgement may be left into force and the Strasbourg court’s decision may be taken into account in the subsequent analogous judgements. But certainly, then it should be reasoned, and the contested judgement left into force should not materially aggravate the situation of the complainant and his rights and freedoms protected by the Convention.[18]

Part D. The role of judges in striking a balance between protecting the public interest and human rights in the context of terrorism

D.1.     Has your country incorporated the Council of Europe recommendations and resolutions in its legislation or taken special measures to distribute and publicise these instruments?

Yes, in Estonia we have incorporated the Council of Europe recommendations and resolutions in our legislation; we use as well Council of Europe recommendations quite often in our court practice (see above C2).

The Council of Europe Tallinn Information Office distributes and publishes these instruments and has an obligation to communicate this information in our society.

Since 1995 the referred information office has translated 31 Council of Europe recommendations and several resolutions into Estonian. Translated documents are public. Translated documents can be fond in the home page of Council of Europe Tallinn Information Office (http://www.coe.ee/?op=body&gid=27).

About other publications of the Council of Europe decisions – see also answer to question A2.

There has not been made precise analysis about the conformity between the recommendations/resolutions and Estonian laws. But generally we can say that recommendations/resolutions are clearly not in considerable contradiction with Estonian laws and practice. For example, the principles of Recommendation Rec(2003)13 on the Provision of Information through the Media in relation to Criminal Proceedings overlap in many articles with the Estonian procedural laws.

From among the recent measures of the Council of Europe to combat terrorism, the Protection of Witnesses Act of Estonia has taken into account Recommendation Rec(2005)9 of the Committee of Ministers to member states on the protection of witnesses and collaborators of justice. Newer instruments, like the Recommendation Rec(2005)10 of the Committee of Ministers to member states on “special investigation techniques” in relation to serious crimes including acts of terrorism and the Recommendation Rec(2005)7 of the Committee of Ministers to member states concerning identity and travel documents and the fight against terrorism, are still to be taken into consideration by amending the notion of the crime of terrorism in the Criminal Code and restructuring and updating the whole combating of terrorism system in Estonia.

D.2.     Has your country adopted substantive and procedural measures specifically applicable for cases where a suspicion about terrorism exists? Please describe what is the role of the judge in the proceedings in this type of cases and indicate in what way his or her role in this case is different from his or her role in ordinary proceedings.

According to art-s 4 and 237 of the Penal Code[19], terrorism is an act aimed at causing health damage or death or at unlawful seizure, damaging or destruction of property, committed with the intention to provoke war or an international conflict or for political or religious causes. As it is punishable by 3 to 12 years’ or life imprisonment, terrorism thus constitutes a criminal offence in the first degree.

In a criminal proceeding where the object is a criminal offence in the first degree, or on the basis of an international request for assistance, evidence may be collected by surveillance activities if the collection of evidence by other procedural acts is precluded or especially complicated (art 110 of the Code of Criminal Procedure[20] (CCP)).

Certain surveillance activities, such as covert examination of postal or telegraphic items, wire tapping or covert observation of information transmitted through technical communication channels or other information or staging of criminal offence (art-s 116, 118 and 119 of CCP) can only be conducted with a permission of a preliminary investigation judge, who shall immediately review the prosecutor’s reasoned request for the conduct of surveillance activities and grant or refuse to grant permission for the conduct of the surveillance activities by a ruling (CCP art 114).

As terrorism is a criminal offence in the first degree, these provisions also apply to the investigation of suspicion about this crime. There are no special regulations for investigating or conducting surveillance activities in case of a suspicion about terrorism.

Another measure applicable to cases where suspicion about terrorism exists is the procedure offered by the Framework Decision on the European Arrest Warrant[21] which is implemented into national legislation as a separate chapter in the Code of Criminal Procedure. Article 491 section 2 clause 2 of this Code allows for the surrendering of a person, among other things, also for commission of terrorism or participation in criminal organisations, regardless of the punishment pursuant to the Estonian Penal Code if imprisonment of at least three years is prescribed as punishment in the requesting state.

There is one specialised court in Estonia which is responsible for giving permissions for conducting surveillance activities and two specialised courts for the surrendering of persons on the basis of the European Arrest Warrant. In practice, there have been no requests for conducting surveillance activities on the grounds of a suspicion of terrorism. Neither have there been any requests for surrendering someone on the grounds of suspicion of terrorism.

D.3.     What means does your country use to reconcile the demands of security and of the protection of human rights in cases where suspicion about terrorism exists? Please indicate the measures taken, in particular in the fields of criminal law, administrative law, admission, exclusion and deportation of aliens, and preventive actions.

Can you quote some specific cases where the question about such reconciliation was raised?

No specific cases where the question about such reconciliation was raised can be quoted.

Still, Estonian Acts contain some regulations (presently still significant in theory only) adoptable in the cases where the demands of security and/or of the protection of human rights in cases where suspicion about terrorism exist.

E.g. art 7 of the Code of Criminal Procedure repeats the principle of the presumption of innocence[22], art 8 foresees the safeguarding of rights of participants in proceedings[23], art 9 safeguards personal liberty and respect for human dignity[24].

Both the Code of Criminal Procedure and the Witness Protection Act[25] ensure the safety of the witnesses: see art 67 (ensuring safety of witnesses)[26] and art 69 (long-distance hearing)[27] of the Code of Criminal Procedure.

The Witness Protection Act stipulates in art 1 that the Act provides for:

1) the procedure for witness protection, the legal bases for witness protection authorities and their activities and for the application of protection measures;

2) the procedure for the performance of the international obligations of the Republic of Estonia related to protection of participants in criminal proceedings.

In the Estonian system, the Central Criminal Police organises witness protection and the supervision over witness protection is exercised by the Public Prosecutor’s Office. Art 5 of the Act enumerates the persons to be placed under witness protection[28] and art 18 the measures of the witness protection[29].

In addition, art 10¹⁰ of the Aliens Act[30] regards the doubt that the arrival of the alien to Estonia could danger the public order, social security or the security of the state as a ground for denying the issuance of a visa. Also, according to art 12 a residence permit shall not be issued to or extended for an alien if (among others) he or she does not observe the constitutional order and laws of Estonia; his or her activities have been or are or there is good reason to believe that such activities have been or are directed against the Estonian state and its security; he or she has incited or incites, or there is good reason to believe that he or she has incited or incites racial, religious or political hatred or violence; there is information or good reason to believe that he or she belongs to a criminal organisation, that he or she is connected with the illegal conveyance of narcotics, psychotropic substances or persons across the border, that he or she is a member of a terrorist organisation or has committed an act of terrorism, or that he or she is involved in money laundering; he or she has received or there is good reason to believe that he or she has received special training in landing operations, or in diversion or sabotage activities, or other special training, and if the knowledge and skills acquired in the process of such training can be directly applied in the formation or training of illegal armed units; he or she has or there is good reason to believe that he or she has participated in punitive operations against civil population; there is good reason to believe that he or she has committed a crime against humanity or a war crime.

All these decisions of the administrative authorities can be contested in the administrative courts of Estonia. The courts adhere to the general principles of law, principles of human rights and respect the European Convention on Human Rights and other documents including of course the Estonian Constitution granting the fundamental rights and freedoms. There have been no court cases in which the admission to the country or the residence permit has been denied on grounds of terrorism suspicion. However there have been judgments of the Supreme Court concerning the question of denial of granting permit due to the risk to the security of state. The Administrative Law Chamber of the Supreme Court has underlined the importance of motivation of such administrative decisions (for example the judgment of   Administrative Law Chamber of the Supreme Court from 21 November 2002 in the case No 3-3-1-68-02).

Furthermore, art 17¹ of the Obligation to Leave and Prohibition on Entry Act[31] provides that an alien may not be expelled to a state to which expulsion may result consequences specified in Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms (RT II 2000, 11, 57) or Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (RT II 1994, 14/15, 44), or the application of death penalty and that the expulsion of an alien shall comply with Articles 32 and 33 of the United Nations Convention relating to the Status of Refugees (together with the Protocol relating to the Status of Refugees of 31 January 1967) (RT II 1997, 6, 26).

Art 18 of the Obligation to Leave and Prohibition on Entry Act provides for the term for expulsion:

A person to be expelled who is a suspect, an accused or an accused at trial in a criminal matter shall be expelled within forty-eight hours after completion of the proceedings or the entry into force of a court judgment. In the case of an appeal against a court judgment, a person to be expelled shall be expelled within forty-eight hours after the return of the appeal or the entry into force of a judgment of a higher court.

Art 28¹ of the Obligation to Leave and Prohibition on Entry Act reads (inter alia): Failure, without imposition of prohibition on entry, to allow aliens to enter Estonia is permitted if there is reason to believe that the arrival of the alien to Estonia may pose a threat to national security, public safety or public order. Art 29 establishes the bases for the prohibition on entry identical to those referred above in art 10¹⁰ of the Aliens Act.