Summary

On 13 May 1998, § 1 of the Code of Criminal Procedure was amended whereby specific decisions of the Supreme Court are treated as a source of the law of criminal procedure.

The author analyses the purposes and implications of the amendment for the judicial practice. In the author’s opinion, the fact that decisions of the Supreme Court are regarded as a source of criminal procedure law should not be treated as a legal-political step taken by the Estonian legislator towards the legalisation of precedence law following the model of Anglo-American common law and according to the stare decisis principle. The adopted amendment should rather be interpreted in the context of the Continental-European legal tradition, which means that decisions of the Supreme Court are not binding in the strict sense. If a judge is convinced that a decision that departs from an existing decision of the Supreme Court would be more in accordance with the law in force, he or she should render a decision different from the Supreme Court decision and provide reasons for doing so.

The author stresses that although the Supreme Court has the authority to develop the law in certain cases, it is not within its competence to make legal-political decisions. In making the law, a judge should rather be confined to what is necessary in order to resolve a specific case.

Finally, the author expresses the opinion that all decisions of the Supreme Court involving judge-made law constitute a source of criminal procedure law regardless of the will of the Supreme Court and of the moment of entry into force of the provisions of law recognising Supreme Court decisions as a source of law.