No. 10




Dissenting Opinions

15 December 2004


RiTo No. 10, 2004

In the general sense, dissenting opinions can differ from majority opinions in terms of justification, or justification and conclusions.

Dissenting opinions and publication of such statements are a hallmark of countries such as England and the United States that are members of the common law family of nations. International courts (the International Court of Justice, the International Criminal Court, the European Court of Human Rights) all generally allow a judge’s dissenting opinion to be made public. Not so in the European Court of Justice. Estonia should support making the ECJ more democratic by allowing judges to issue public dissenting opinions and changing European law to reflect this. In Estonia, judges have the right to dissenting opinions when handing down verdicts, and Supreme Court justices also have the right to express their dissenting opinion. In current law, dissenting opinions are given legal basis by the Constitutionality Supervision Court Procedure Act adopted 13 March 2002. According to Article 57.5 of that law, judges who do not agree with a decision or its justification can write a dissenting opinion. Still, dissenting opinions have varying degrees of acceptance in different types of proceedings, though a beginning has been made to work out a standard model. In Riigikogu practice, dissenting opinions are fairly widespread in Estonia. In the Supreme Court, from the first decision, 22 June 1993, to the completion of this article on 1 November 2004, a total of 88 dissenting opinions had been written for 67 cases. The opportunity for a judge to write and express a dissenting opinion is a significant democratic principle and from the aspect of independence of the judiciary. In Estonian law, the state court justice’s dissenting opinion can be placed between a Supreme Court case and jurisprudential doctrine. Its meaning is to seek justice, create justice and develop justice, thus exerting an influence on future judicial practice and new legislation.

Full article in Estonian