No. 36




Is Estonia doing everything possible and necessary in its national defence legislative drafting to ensure its security?

07 December 2017


RiTo No. 36, 2017

  • Kaido Pihlakas

    Lawyer Emeritus, Adviser to the Estonian Reserve Officers Association, Captain in Reserve

Is Estonia doing everything possible and necessary in its national defence legislative drafting to ensure its security? Unfortunately, not sufficiently so far, considering the regulation of the activities of courts under state of emergency, especially the state of war.

One of the fields that supports security is preparing the legal system and the law enforcement agencies for acting in possible crisis situations. Estonia has not achieved the necessary readiness of courts and the law enforcement bodies connected with them, including the military police, the prosecutor’s office and the bar association, especially for the state of war.

The state of regulations on administering of justice during the state of war is not something to be proud of, because there are no legislatively sufficiently clear and relevant legal safeguards for effective functioning of the legal system during the state of war, considering all its peculiarities.

The fact that after the passing of the National Defence Act, the Ministry of Justice started to plan the initial task for the legal regulation of broad-based national defence on the basis of the plan for conducting a revision of national defence law in 2016–2019, and the analysis of the Acts relating to national defence was planned, deserves recognition.

The Lawyers Section of the Estonian Reserve Officers Association has organised international conferences to analyse the experience of other countries in order to get ideas on how to organise the work of the Estonian legal system during the state of emergency and the state of war. The Lawyers Section has prepared a draft for amending the Courts Act by forming a military court for the state of war on the basis of the possibility provided by the Constitution of the Republic of Estonia to establish special courts. The relevant practice, experience and recommendations from Estonia before the World War II, and other countries (Finland, Hungary, Latvia, Israel, USA, Ukraine) have been taken into account. The draft has been presented to the Ministry of Justice, the Ministry of Defence and the National Defence Committee of the Riigikogu, where these issues have been discussed.

It seems that the Ministry of Justice has not yet sufficiently analysed the legislation and solutions for regulating the activities of courts during wartime of the countries that are similar to us, and of the countries with the most modern military experience. At the same time, great attention has been paid to the regulations of the state of emergency, which are based on the fight against terrorism.

There is no reason to think that it would be possible to organise the activities of courts effectively during wartime just by the specialisation of some judges in ordinary courts. The legislative and political reasoning regarding the possibilities of establishing military courts and their activities needs a substantive and very thorough analysis and argumented discussion, considering the characteristic features of Estonia – the number of its population, its size, geographical position and historical experience – and also the provocative and aggressive nature of today’s Russia against its neighbours, i.e. the Baltic States, and the nature of modern warfare.