Summary

On 8 October 2012, the Chancellor of Justice of the Republic of Estonia refused to make to the Riigikogu a proposal set out in the second sentence of §76 of the Constitution and §378 (1) (and §379) of the Code of Criminal Procedure (CCP) to consent to the criminal prosecution of two members of the Riigikogu (Priit Toobal and Lauri Laasi), i.e., to the preparation of a statement of charges regarding them. On the basis of §378 (7) of the CCP, the Chancellor of Justice returned the request of the Chief Public Prosecutor (hereinafter: Prosecution) for the preparation of a statement of charges, taking the stance that bringing charges against Priit Toobal and Lauri Laasi would be clearly unsubstantiated for the purposes of §378 (6) of the CCP. The Chancellor of Justice reasoned his judgment briefly by the opinion that the provisions of the CCP on the basis of which the searches were conducted in several locations associated with Priit Toobal and Lauri Laasi were contrary to the Constitution.

The author of this article, without taking a position on whether or not §377 of the CCP is contrary to the Constitution, finds that the reasoning in the response of the Chancellor of Justice of 8 October 2012 embodies in itself two problems which, independently of each other, render the return of the request of the Prosecution exposed to legal attacks. Firstly, the Chancellor of Justice has no constitutional or legal basis, when deciding on the proposal to the Riigikogu set out in §76 of the Constitution and §378 (1) of the CCP, to invoke the presumption that the law on which the making of the proposal is dependent on is contrary to the Constitution. The Chancellor of Justice has no competence to perform or initiate a verification of a certain rule. Secondly, even if we postulate that §377 of the CPP is contrary to the Constitution in the part specified by the Chancellor of Justice, it cannot be concluded a priori that bringing charges against Priit Toobal and Lauri Laasi was clearly unjustified for the purposes of §378 (6) of the CCP.