Constitutional review

The system of judicial constitutional review in Estonia was created on the basis of the Constitution adopted in 1992. Pursuant to the Constitution, the highest court in Estonia, the Supreme Court, is also the court of constitutional review. The composition of the Supreme Court includes the Constitutional Review Chamber. The Constitutional Review Chamber of the Supreme Court consists of nine justices elected by the Supreme Court en banc for five years. Whereupon, members of the Chamber shall not be elected for longer than two terms of office. The Chief Justice of the Supreme Court shall be the chairman and presiding judge of the Chamber and at least one member from the Civil, Criminal and Administrative Chambers of the Supreme Court shall belong to the Chamber.

Cases are heard by a panel consisting of at least three justices of the Constitutional Review Chamber. In certain cases, matters of constitutional review are adjudicated by the Supreme Court en banc. In accordance with the rules of the Supreme Court, a case is referred to be heard by the Supreme Court en banc if the petition for the case to be heard is received from another Chamber of the Supreme Court or the petition concerns a significant constitutional issue. The Constitutional Review Court may also decide to refer a case for consideration by the Supreme Court en banc. This occurs in the following instances: if, upon the hearing of the matter in the Chamber, at least one justice maintains a dissenting opinion; or, if adjudication of the matter by the Supreme Court en banc is necessary to alter earlier practices of interpretation or judgment.

The process of constitutional review presented above differs from the system established in most European countries, where constitutional courts separate from the rest of the judicial system were mostly created after World War II. However, the Estonian variant has some significant advantages compared to other European countries. Besides diminishing administrative expenses, the system ensures the uniformity of judicial practice and excludes possible conflicts between the highest instance of the administrative and general court system and the constitutional court in the interpretation of law and the Constitution. This is because members of the Constitutional Review Chamber are, at the same time, members of other Chambers of the Supreme Court, a fact that ensures an integrated development of legal practice. The Estonian system also decreases the possibility of constitutional review becoming politicised: the instance of constitutional review belongs to the highest court of the state judicial system, the members thereof being appointed from among the justices by the highest court itself. One of the functions of constitutional review is to check that the decisions of the supreme political body of power in the state — the representative body of the people — are in compliance with the norms and principles established by the Constitution.

The following have the right to propose the initiation of constitutional review court proceedings:

  • the President, if the Riigikogu passes, unamended, an Act which the President of the Republic refuses to proclaim;
  • courts, if a court declares, in its judgment, an Act or other legislation of general application to be in conflict with the Constitution and does not apply such Act or legislation;
  • the Legal Chancellor, if he or she finds that an Act is in conflict with the Constitution (or other legislation of general application is in conflict with the Constitution or an Act) and the body which passed the Act fails to bring the legislation into conformity with the Constitution, or if he or she finds that an international agreement of the Republic of Estonia which has not yet entered into force is in conflict with the Constitution;
  • an individual, if there are no other means of legal protection.

Constitutional review in Estonia is therefore carried out both by way of ex-ante review (the President of the Republic monitors Acts which have not yet entered into force, the Legal Chancellor monitors international agreements which have not yet entered into force) and ex-post review (of Acts and other legislation of general application which have already entered into force).

Pursuant to the Constitution, the Supreme Court has the right to declare invalid any Act or other legislation, which is in conflict with the provisions or spirit of the Constitution. The lower courts have no such right. However, they are required to submit a corresponding petition to the Supreme Court if they assert their authority not to apply an Act or other legislation of general application because, in their opinion, it is not in conformity with the Constitution. The Supreme Court shall then make one of the following decisions:

  • to deny the petition;
  • to satisfy the petition and repeal the Act or other legislation of general application in part or in full (the constitutional review was applied for by a court);
  • to declare an international agreement to be in conflict with the Constitution;
  • to declare an Act to be in conflict with the Constitution (if the constitutional review was applied for by the President of the Republic).

Upon the adjudication of a matter of constitutional review, the Supreme Court is restricted to the extent specified in the petition (by verifying only the conformity with the Constitution of provisions specified in the petition).

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