Juridica International最新文献

{"title":"Parallele Anwendbarkeit von Grundrechtecharta der EU und nationalen Grundrechten","authors":"Ivo Pilving","doi":"10.12697/ji.2018.28.02","DOIUrl":"https://doi.org/10.12697/ji.2018.28.02","url":null,"abstract":"Pursuant to its Article 51 (1), the EU Charter of Fundamental Rights covers the implementation of EU law. Since 2014, the Estonian Supreme Court has applied the assumption that the Charter, in principle, does not preclude parallel applicability of national-level fundamental rights in areas subject to EU law, although the primacy, unity, and effectiveness of EU law must not be compromised thereby. The Member State's margin of appreciation should not be considered a precondition for the relevance of national fundamental rights. Even mandatory norms of EU law, which inevitably require certain national measures (e.g., permission to use a piece of music for sampling as in CJEU case C-476/17: Pelham), do not exclude the applicability of constitutional rights (here, the composer's copyright), though these can justify their restriction. Hence, the relevant piece of EU legislation itself must be valid. The CJEU should follow the principle of constitutional plurality in dialogue with national courts when examining the validity of EU norms restricting national fundamental rights. A parallel analysis of the national constitution and Charter by the competent national court would assist the CJEU in issuing a preliminary ruling. The most favourable standard of the fundamental rights in sense of the Article 53 should not be determined on merely abstract terms. Instead, the results of parallel analysis in light of the pending case should be of decisive importance. One conclusion presented is that in cases of multipolar conflict, there remains the possibility that a even fundamental right of one person that is derived from a national constitution can sometimes justify infringement on the charter-based right of another if there is no secondary legal balance of legal positions. In addition, exceptional situations might exist wherein fundamental principles of national constitutions may be granted precedence over the effectiveness of EU law.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47120029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tasks and Responsibilities of an Employer in a Digital Age: How to Comply with the Applicable Requirements for Work Conditions","authors":"Gaabriel Tavits","doi":"10.12697/JI.2018.27.08","DOIUrl":"https://doi.org/10.12697/JI.2018.27.08","url":null,"abstract":"New forms of employment are not in line with the assumptions or terms of the labour-law rules that are in force today. In these cases, the employer has to employ different protection mechanisms in practice. If the necessary protection is to be guaranteed, there is still a need to follow work- and rest-time rules, occupational health and safety rules, etc., yet all those obligations are connected to the workplace. Because new forms of employment, however, are usually not connected to a concrete workplace, applying all of the necessary protection mechanisms is growing more complicated, particularly when the laws and regulation are out of step with technological and other development of society. In addition, difficulties arise in connection with assessment of the quality of the work done. The article examines these issues, the roles of the employer and employee in emergent forms of work, and mechanisms that represent possibilities for the future.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42486121","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Interpretation of Undefined Legal Concepts and Fulfilling of Legal Gaps, in Juri Lotman’s Semiotic Framework","authors":"Liina Reisberg","doi":"10.12697/ji.2018.27.01","DOIUrl":"https://doi.org/10.12697/ji.2018.27.01","url":null,"abstract":"The article examines whether the structure of meaning proposed in cultural semiotics by the Tartu–Moscow School of Semiotics is applicable for the interpretation of undefined legal concepts and to the filling of legal gaps. With the assistance of Lotman’s cultural semiotics, one is able to formulate the regularities that operate in legal interpretation in the same way as in culture. One of these is the binary structure of legal concepts and gaps. In interpreting norms and striving to overcome legal gaps, it is necessary to define the external reference (‘utterance’) and the self-reference (‘text’) in law. The article clarifies and examines these in the legal context and reiterates the value of bearing in mind throughout the process that interpretation always takes place in relation to this binary structure.\u0000","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46904167","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"(Just) Give Me A Reason …","authors":"J. Laffranque","doi":"10.12697/JI.2018.27.02","DOIUrl":"https://doi.org/10.12697/JI.2018.27.02","url":null,"abstract":"Judicial systems often wrestle with whether to sacrifice always presenting thorough judicial reasoning for the sake of an effective leave-to-appeal system. The paper outlines issues of reference to the Luxembourg Court, particularly with regard to Estonian circumstances in light of the ECtHR judgment in Baydar v. the Netherlands. The interplay between EU law and the European Convention on Human Rights in this regard is considered first, along with the importance of giving reasons, courts’ authority, the different roles of domestic and European courts, the duty of referring questions to the CJEU and exemption, consequences of non-referral in EU law, the Strasbourg Court’s role in dialogue between national courts and the CJEU, etc. Examined next are such matters as influences on preliminary references in European Union law, summary reasoning and limits to the reasoning duty (especially with regard to the Ullens de Schooten case of the ECtHR), associated division of competencies between the Strasbourg and Luxembourg courts, and finally the reasoning of the ECtHR itself as good or bad example. The author then considers the Supreme Court of Estonia’s leave-to-appeal system and the national courts’ practice in relation to Baydar, concluding that, while reasoned judgments are important and a right, no right exists for the applicant’s case to be referred by a domestic judge to the Luxembourg Court, though it is vital that summary judgment not be arbitrary / manifestly unreasonable; that Estonian courts have made reasonable use of the preliminary reference procedure before the Luxembourg Court thus far; and that they should articulate well the reasoning for referral/non-referral for litigants. The author proposes that the Estonian Supreme Court explain, exceptionally in one refusal of leave to appeal (cf. the Netherlands), that the general requirements for granting leave to appeal cover also the situation of preliminary questions to the CJEU and C.I.L.F.I.T. arguments of the CJEU. Above all, neither the interplay between EU law and the European Convention on Human Rights nor the role of national courts finding their way in complex legal surroundings should be neglected. ","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44645023","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Which Adverse Environmental Impacts of an Economic Activity Are Legally Acceptable and on What Conditions","authors":"Hannes Veinla","doi":"10.12697/ji.2018.27.06","DOIUrl":"https://doi.org/10.12697/ji.2018.27.06","url":null,"abstract":"The general aim of Estonian environmental law is reduction of environmental nuisances to the greatest extent possible, so as to protect the environment and human health, well-being, property, and cultural heritage. Hence, Estonian environmental law is not radically ‘green’: the aim is not to fully and unconditionally avoid environmental nuisances, since the functioning of human society and increasing of our prosperity are not possible without certain negative impacts on the environment. A fairly clear differentiation between environmental risks and hazards, in combination with the corresponding legal principles (of precaution and prevention), is characteristic of Estonian law. One of the main concerns with respect to plans and activities with a likely adverse environmental impact is whether the activity planned could cause environmental hazards in addition to environmental risks and, consequently, whether the precautionary principle or instead the preventive principle should be applied. Proven or assumed environmental nuisances caused by the activity in question do not necessarily need to be reduced or prevented; this duty applies only when a higher threshold is crossed – that is, when the environmental risk and/or hazard limit is exceeded. Hence, for plans and projects it has to be established whether the proposed activity actually would cause environmental risks and/or hazards. In the case of environmental risks (i.e., in situations wherein it is possible for an environmental nuisance that must be reduced to occur), the goal is not a priori prohibition of the activity but the application of measures that reduce the risk proportionally, where those measures might be carried out by such means as attaching additional conditions to environmental permits. Once the measures are set forth, it is up to the operator to decide whether meeting the prescribed conditions is feasible or, instead, the planned activity would be economically unreasonable under those conditions. When the probability of pollution occurring is considered great enough, there is deemed to be an environmental hazard, which must be prevented. Whether a hazard exists or not must be revealed in the course of further (scientific) research. Another important consideration is that an environmental hazard or a significant environmental nuisance needs to be tolerated in cases wherein all three of the following conditions are fulfilled: the activity is rendered necessary on account of compelling interest, there are no reasonable alternatives for safeguarding this interest, and the necessary measures have been taken to reduce the environmental hazard or significant environmental nuisance. ","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41879735","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Towards a Single Government Approach via Further Consolidation of Law and Order in Estonia, with Domestic Violence as an Example","authors":"Raul Narits, Silvia Kaugia, Iris Pettai","doi":"10.12697/JI.2018.27.11","DOIUrl":"https://doi.org/10.12697/JI.2018.27.11","url":null,"abstract":"An appropriate ‘solution pattern’ for social problems in a state based on the rule of law entails the existence of corresponding legislative regulations. The solution should be approved at the level of a law as a legislative act of supreme juridical power. A solution created at that level would fully correspond to the principle of rule of law and also minimise the possibility of socalled departmental special interests prevailing, in recognition that this danger accompanies efforts toward the solution of every multifaceted problem. The authors find that, since Estonia already possesses relatively extensive experience in legislative consolidation for various aspects of the society’s reality, with most of this experience being of a positive nature, it would be a most welcome development if the issue of DV were to be included in the current process of consolidation under the auspices of the project Towards the Development of Better Legislation. Legislative drafting is stimulated by the perception of acute social problems and of a need to regulate them by legislative means. Results from 2014 and 2017 surveys show that Estonia’s legal practitioners perceive DV as a problem the causes of which demand research and whose victims require help. Most legal practitioners surveyed encountered DV in their day-to-day work, with prosecutors and police detectives bearing the heaviest burden: it consumed nearly one third of their work hours. A serious problem was identified in prejudice and stereotypes, which yield an oversimplified and distorted image of the actual causes of DV, in which the victim frequently is considered responsible. Both the general population and legal practitioners widely share the erroneous impression that the victims could avoid violence through ‘appropriate conduct’. Such stereotypic attitudes wherein victims are considered partially to blame for violence can obstruct the work of law-enforcement agencies. While the idea of a special law on DV found support and scepticism in roughly equal measure, support for it increased significantly when respondents judged the concrete opportunities and solutions offered by such a law. These legal practitioners perceived numerous bottlenecks and unsolved problems in relation to the existing legislative regulation and legal practice, which one would expect to be overcome through a special law on DV. The authors conclude from the survey-based findings that Estonia’s legal practitioners demonstrate considerable anticipation for a law on DV. The participants in the surveys also perceived an increasing need for co-operation with law-enforcement agencies in this regard – i.e., for concentrating on collaboration within this domain. However, the authors consider it undoubtedly important also to increase the involvement of specialists in the DV field: victim support services, staff of women’s shelters, and municipal social workers. ","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49043299","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Digital Inheritance: Heirs’ Right to Claim Access to Online Accounts under Estonian Law","authors":"Tiina Mikk, K. Sein","doi":"10.12697/ji.2018.27.12","DOIUrl":"https://doi.org/10.12697/ji.2018.27.12","url":null,"abstract":"As we have moved more and more of our life onto the Internet, issues of digital inheritance have become all the more topical. The article takes as its main research question whether an heir is entitled to claim access to digital assets of the deceased and to exercise rights arising therefrom. In practice, many providers of Internet-based services, all over the world, seem to be of the opinion that the answer is ‘no’. The article focuses on analysing the topic from the perspective of Estonia’s applicable inheritance and data protection law. Also, comparative law arguments drawn from consideration of German case law and legal literature are applied. The authors examine two examples of Estonian online services – an online ticket sales service and an e-invoice management portal – and conclude that Estonian law does not grant the respective service providers a right to deny heirs access to the accounts.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49285294","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Patient’s Will – Why and for Whom? Forms, Formalisation, and Implementation Issues","authors":"Maret Kruus, Rainis Int, Ants Nõmper","doi":"10.12697/JI.2018.27.14","DOIUrl":"https://doi.org/10.12697/JI.2018.27.14","url":null,"abstract":"If a patient decides they do not wish to receive health care services and would prefer to die, the healthcare service provider is not allowed to provide health care services to the patient under the principle of personal autonomy. In this case, the patient’s will needs to be taken into consideration even when they are currently unable to express it themselves, for instance when the patient is unconscious. In the situations where the patient is unable to express their will on their own, many countries have introduced the use of living wills that are also often called advance directives. A living will is a declaration (usually in writing) on what kind of treatment a person wishes or does not wish to receive in a situation in which they are unable to make decisions on their own, for instance, in the case of unconsciousness or dementia. In addition to preparing a living will, people can also provide future health care directives by assigning a substitute decision maker who can express the person’s presumed will in case of the person being unable to express their decision. The most effective means for ensuring one’s personal autonomy is using a living will, since it is compiled by the person themselves. Although living wills are not common in Estonia, the legislation of the country makes no obstacles for its use. The people of Estonia are also becoming increasingly aware of their rights. People have already turned to notaries with a wish of providing notarial future directives on the provision of health care services or maintenance of their property in the case that they no longer have the capacity to exercise their will themselves. The article discusses the role of a living will near the end of life and also discusses the issues related to its formation and implementation. The last part of the article briefly addresses the instructions related to maintenance of the patient’s assets in the case of incapacity to exercise the will. ","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45741527","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Restraining at Care Institutions Evaluated from the Standpoint of Penal Law","authors":"Erkki Hirsnik, Marje Allikmets","doi":"10.12697/ji.2018.27.13","DOIUrl":"https://doi.org/10.12697/ji.2018.27.13","url":null,"abstract":"The connection of restraining measures and necessary elements of a criminal offence may be twofold. First, restraining measures can correspond to actions described in legal provisions of the special part of the Penal Code. It means that the restraining person could be charged under criminal law. Secondly however, it needs to be noted that in some cases, liability under criminal law may follow when restraining measures are not being used - a person may become liable for committing a crime by failing to act. Thus, the job of a caretaker involves a high level of responsibility and danger in the sense of penal law - a punishment may follow both for doing something and also for failing to act. Upon the implementation of restraining measures, several constitutions of the special part of the Penal Code may become relevant. However, the primary provision to view here is Article 136 of the Penal Code (unlawful deprivation of the liberty of another person). Therefore, the article mainly focuses on this provision and also analyses some other provisions of the special part of the Penal Code that may become relevant. It also addresses general circumstances excluding illegality, i.e., the circumstances to be considered not only in care institutions but also almost everywhere else. After this, the article analyses specific circumstances excluding illegality, that is the circumstances relevant within the context of the topic of the article. Since there is very little legal literature (and case law) on this matter in Estonia, the article is mainly based on German law as an important model the Estonian law is built upon.","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46573073","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Limitation of Freedom of Speech and of the Press by Penal Law in the Final Decades of the Russian Empire","authors":"Olja Kivistik, Marju Luts-Sootak","doi":"10.12697/ji.2018.27.04","DOIUrl":"https://doi.org/10.12697/ji.2018.27.04","url":null,"abstract":"In the 21st century, it is inappropriate to have to ask whether criticising a political regime or exercising freedom of speech could lead to criminal charges and criminal punishment. In contrast, a hundred years ago the restriction of people’s freedom of speech, especially in relation to political matters, was quite extensive, both in autocratic Russia and elsewhere. The article addresses the legal situation in the Estonian territory of the Russian Empire until 1918, when insubordination to state authority and inciting mutiny were punishable by law. On 17 April 1905, the so-called Freedom Manifesto gave people freedom of speech, and the Fundamental Laws of the Russian Empire entered into force one year later, wherein fundamental rights were enumerated, among them the right to express one’s convictions, both orally and in writing. At the same time, however, restrictions continued to apply to the fundamental rights declared, which at times were very strict in the tsarist state and rendered the space for exercise of those rights extremely narrow. The article provides an overview of the penal legislation that was applicable within the Estonian territory at the dawn of the 20th century, which set boundaries to freedom of speech and of the press. Considered separately is the case law of the Tallinn Circuit Court pertaining to charges of instigation of mutiny, with the aim of showing how these provisions were applied in judicial practice and the context in which the state restricted people’s fundamental rights. In the Tallinn Circuit Court, it was primarily newspaper editors who were charged with incitement to mutiny, because they allowed the publishing of various calls to action in relation to workers’ movement propaganda and demands for better conditions and rights for workers. At the beginning of the 20th century, class warfare was considered a crime against the state, and the case law demonstrates how the constitutional freedoms of speech and the press were restricted via strict penal-law measures. ","PeriodicalId":55758,"journal":{"name":"Juridica International","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45476252","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}