Zone 2 – Keywords of the systematic thesaurus:
The Thesaurus includes five chapters with a tree-like structure.
Chapter 1 of the Thesaurus, which is moreover the longest of the five chapters, covers the body of constitutional jurisdiction of which the decision is being indexed (Constitutional Court, Supreme Court, Constitutional Council etc.). This chapter should be used restrictively, as the keywords in it should only be used if a relevant procedural question is raised. This chapter is thus not used to establish statistical data; rather, the user of the CODICES database should only find decisions under this chapter when the subject of the keyword is an issue in the case. For this reason it is advisable to index in the reverse order of chapters, i.e. starting with chapter 5, then 4, then 3 etc.
Chapter 1.1 deals with the structure of the Court in question, 1.2 covers the different applicants, 1.3 speaks of the jurisdiction of the Court. Sub-chapter 1.3.5 deals with the enactment under review. The various procedural aspects before the Court can be found in 1.4. Questions of procedural guarantees before lower instance courts are to be found in chapter 5.3.13 of the Thesaurus. If the type of decision to be taken is at issue, chapter 1.5 should be used. Finally, chapter 1.6 deals with the effects of the decision if they are of interest.
Chapter 2 covers the sources of constitutional law. 2.1 covers national and international sources (treaties, case-law etc), questions of hierarchy between sources are dealt with in 2.2 and the various techniques of interpretation in 2.3.
Chapter 3 covers the general principles of constitutional law, such as democracy (3.3) or the separation of powers (3.4) The principle of equality also figures at 3.20. It should be noted, however, that this keyword is only to be used when the principle of equality is not applied to individuals (as a fundamental right). In that case the keyword “equality” in chapter 5.2 should be used.
Chapter 4 covers state institutions, especially the head of state (4.4), parliament (4.5), government (4.6) and courts other than the court with constitutional jurisdiction (4.7). Chapter 4.8 applies to states with a federal or regional structure. Chapter 4.9 deals with the various aspects of elections. Then follow the institutions such as public finances (4.10), armed forces, police forces and secret services (4.11), the Ombudsman (4.12) and other special cases. Chapter 4.17 deals with issues related to the institutions of the European Union.
Chapter 5 is subdivided in accordance with the two United Nations Covenants on civil and political rights (5.3) and economic, social and cultural rights (5.4). Chapter 5.1 covers general questions such as entitlement to rights (5.1.2) and limitations on fundamental rights (5.1.3). Chapter 5.2 covers the principle of equality applied to individuals. Chapter 5.4 gathers together certain rights known as collective rights.
Footnotes
The footnotes are a very important element in all five chapters of the Thesaurus. They serve to explain the keywords and to advise as to their correct use. In some cases they also contain cross-references to other keywords, which should be used.
Indexation
Another very important element is the indexing of what the reader will see. Usually it is the précis in CODICES that are indexed. Thus only the elements appearing in the précis as it is to be published should be indexed, and not subjects which only appear in the full text of the decision. If such a subject is important enough to be indexed in the Thesaurus, then it should also be included in the précis. If it is not appropriate to include it in the précis, then it should not be indexed either.
Formal structure of the Systematic Thesaurus
The Systematic Thesaurus is subdivided into five chapters, like the branches of a tree (hence the branched, hierarchical structure of the Thesaurus). The major branches of this “tree” are subdivided into ever finer branches, and thus the subjects covered by the branches become more and more specific.
Take for example the word “equality” applied as a fundamental right:
- Fundamental Rights
…
5.2. Equality
…
5.2.2 Criteria of distinction
5.2.2.1 Gender
5.2.2.2 Race
…
When indexing, a complete “chain of keywords” must always be given without omitting intermediate links. For example, to indicate a decision dealing with discrimination based on gender:
“5.2.2.1 Fundamental Rights – Equality – Criteria of distinction – Gender.”
If there is no last term in the chain that corresponds to the contents of a decision, a chain of keywords in the systematic thesaurus may, however, be shortened to index for example a decision based on a criterion of distinction that is not given in the Thesaurus, such as an arbitrary date:
“5.2.2 Fundamental rights – Civil and political rights – Equality – Criteria of distinction.”
In this case the criterion should be added to the list of keywords in the Alphabetical Index. However, as stated above, it is not permissible to make shortcuts within chains or to mix keywords from different chains.
The keyword chain always begins with a capital letter and ends with a full stop “.”.
The data input mask automatically takes care of the correct numbering of the keywords. On the contrary, when using text processing software for the preparation of the contribution of the currently valid version of the Thesaurus, please add the number of the Thesaurus keyword manually (for example 5.3.13.12). In order to avoid confusion, please note the version of the thesaurus that you have been using at the top of your contribution, e.g. “Thesaurus V15”.
Examples of keyword chains
- Wrong (shortcut of keyword chain):
5.3.13.11 Fundamental Rights – Civil and political rights – Impartiality.
Correct:
5.3.13.11 Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Impartiality.
- Wrong (joinder of two keyword chains):
5.3.13.12 Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Independence – Impartiality.
Correct:
5.3.13.11 Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Independence.
5.3.13.12 Fundamental Rights – Civil and political rights – Procedural safeguards and fair trial – Impartiality.
III. Wrong (invention of keyword):
5.3.30 Fundamental Rights – Civil and political rights – Right to respect for one’s honour and reputation – Libel.
Correct:
5.3.30 Fundamental Rights – Civil and political rights – Right to respect for one’s honour and reputation.
And add the use of a separate keyword “Libel” in the alphabetical index.
Zone 3 – Keywords of the alphabetical index:
The alphabetical index is used to index concepts that are not found in the Systematic Thesaurus, which only covers constitutional law issues. The alphabetical index thus serves for the indexing of other branches of law (civil, criminal etc) as well as to refine or narrow down a keyword of the Thesaurus (see the “libel” example above). It is used especially to index legal keywords, but may also cover factual matters such as “housing” or “forest”.
Liaison officers are free to add new keywords to the alphabetical index. It is nonetheless advisable to use keywords that have been used previously. The computerised entry mask suggests a list of such keywords. This mask will also include a list of cross-references to other keywords that should be used (for example, not “termination of pregnancy” but “abortion”) as well as cross-references to the Systematic Thesaurus (for example, do not use “Police” in the index but rather “4.11.2 Institutions – Armed forces, police forces and secret services – Police forces” in the Thesaurus). If possible, plural forms should be avoided for the keywords of the alphabetical index.
A repetition of keywords of the systematic thesaurus should be avoided, but elements figuring in the footnotes to the thesaurus may be used in the alphabetical index.
Keywords may consist of more than one word, but their total length must not exceed 80 characters including spaces between words. The keywords should be separated by space, slash, space ” / ” and begin with a capital letter. The list of keywords ends with a full stop “.”.
The most important element of the keyword should be placed first followed by a comma. Prepositions at the end of such inverted keywords are deleted:
Example: “Administration of local communities” becomes
“Local community, administration” (the keywords are inverted to place the most important element first; the preposition “of” is deleted and the keyword is singular)
These rules do not apply, however, to composite terms designating a well defined legal concept.
Example: “Free movement of persons” is correct.
Zone 4 – Headnotes:
Zone 4 contains a short summary with the headnotes (Leitsätze, Massime), key legal principles that emerge from the case. They should not contain extracts of the decision, but a summary of the main contents. Each legal issue considered in the decision should be summarised in one paragraph. This information should be abstract and not contain any reference to the particular facts of the case. Consequently, there should be no mention of “The Constitutional Court decided that …”. The main legal elements of the case should be briefly presented in the form of full sentences. A mere enumeration of points raised should find its place in the systematic thesaurus or in the alphabetical index.
As a general rule, headnotes should indicate the content of legal norms (e.g. “freedom of expression”). Their citation (e.g. “Article 3 of the Constitution”) may be added. For this citation, see below “Zone 5 – Summary”.
Example: “The constitutionally protected right to vote and to stand for elections (Article 38 of the Constitution) forbids a transfer of duties and responsibilities of the Federal Parliament, such as to weaken the legitimisation of State power gained through an election, and the influence of the people on the exercise of such power, to the extent that the principle of democracy is violated”.
Zone 5 – Summary:
This zone should briefly describe the main facts of the case, the procedure followed, details on who appealed to the Court, what the law under scrutiny dealt with; the arguments put forward by the petitioner; the Court’s assessment of the petitioner’s arguments; the reasons given by the Court for its decision, including what factors it considered to be decisive in the case and why, the decision taken, and, if available, information on dissenting opinions. Additional information on the legal reasoning (ratio decidendi) behind the decision can be given without, however, repeating the headnotes.
It is recalled that the whole précis must not exceed 1200 words.
The harmonising of citations is very important, because it allows for the automatic creation of links from the précis to the relevant texts. Below are certain rules to be followed:
- Quoting of legal texts
Please refrain from repeatedly citing your Constitution or your Court in full throughout the text as in most cases it is clear from the context which Constitution or Court you are referring to, e.g. not “the Constitutional Court of the Republic of XY” or “the Constitution of XY” but rather “the Constitutional Court” and “the Constitution”. Of course, in cases where there is the possibility of confusion with other Constitutional Courts or Constitutions, please cite them accordingly. Furthermore, please do not refer to “our” Court or “our Constitution”. As the précis become part of CODICES, please do not refer to “now” in time but rather to “at the time of the decision”.
- Quoting in the original language
If you wish to use the name of a national institution in the original language, cite it at the first occurrence in a précis between brackets and in italics preceded by the generic term of this institution (e.g. “Parliament (Nationalrat)”. In the following citations within the same précis, please use the generic term only (e.g. “Parliament”).
- Quoting of articles
When you cite articles, try not to use the abbreviation “Art.”. It is better to write “Article” in full.
On the other hand, sub-divisions of articles should be referred to in the following way:
“Article 3.2.a” rather than “Article 3, section 2, sub-section a”
“According to Article 1.3″ rather than “according to Article 1 item 3″
Only the citation of specific sentences remains in full, for example
“Second Sentence of Article 1.3.3 of the Constitution”.
For legal texts, in particular internal legislation, which do not use articles, “Section” or the symbol “§” can be used: (Note that in French “section” or “§” will be translated to “article”)
“Section 28.2.a of the Civil Code” or “§ 45.2.a of the Judiciary Act”.
A series of Articles shall be referred to in the following form:
“Articles 17, 32, 69 and 117 of the Constitution”.
References to Articles of the Convention for the Protection of Human Rights and Fundamental Freedoms, its Protocols and Articles of the Treaty establishing the European Community should be made using the abbreviations “ECHR” “Protocol ECHR” and “EC”:
“Article 6.3 ECHR”, “Article 1 Protocol 1 ECHR”, or “Article 177 EC”.
Do not use the prepositions “of the” before “ECHR” but “ECHR” only.
Zone 6 – Supplementary information:
Zone 6 contains additional information, which in contrast to zone 5, is not part of the decision itself. This zone is optional and may be used to put the reported cases in context, for example by using such entries as “as a consequence of this decision, the Law on … has been amended” or “settled case-law”. Liaison officers might also wish to give information about the general political context of a decision.
It may also be used to indicate the articles of the Constitution or other legislation referred to in the decision.
Example: “Legal norms referred to:
Articles 3, 5, 6 and 80 of the Constitution”.
Please do not use abbreviations for the legislation.
Zone 7 – Cross-references:
Zone 7 can be used for cross-references to decisions of the same court or other courts, whether published or not. If a decision has been published in CODICES, it should be cited in the following way:
Example: “decision 94-354 DC of 11.01.1995, CODICES 1995/1 [FRA-1995-1-003]”.
Zone 8 – Languages:
Zone 8 shall indicate all languages in which a decision is available, followed, if appropriate, by the mention “(translation by the Court)”. References to published translations in Zone 1 h) are possible.
Example: “Croatian, English (translation by the Court), German (translation, see above zone h)”.
APPENDIX
Identification: EST-2009-2-007
a) Estonia / b) Supreme Court / c) En banc / d) 08.06.2009 / e) 3-4-1-7-08 / f) Review of
constitutionality of Articles 126.6, 129.1 and 129.2 of the Public Procurement Act / g) Riigi
Teataja III (Official Gazette), 2009, 30, 218, www.riigikohus.ee / h) CODICES (English,
Estonian).
Keywords of the systematic thesaurus:
1.3.1.1 Constitutional Justice – Jurisdiction – Scope of review – Extension.
2.2.1.6 Sources – Hierarchy – Hierarchy as between national and non-national sources –
Community law and domestic law.
3.12 General Principles – Clarity and precision of legal provisions.
4.6.6 Institutions – Executive bodies – Relations with judicial bodies.
4.7.1.1 Institutions – Judicial bodies – Jurisdiction – Exclusive jurisdiction.
4.7.2 Institutions – Judicial bodies – Procedure.
4.7.9 Institutions – Judicial bodies – Administrative courts.
5.3.13.3 Fundamental Rights – Civil and political rights – Procedural safeguards, rights of the
defence and fair trial – Access to courts.
Keywords of the alphabetical index:
Public procurement, dispute, settlement, procedure / Constitutional justice, diffuse control /
Legal aid / Law, constitutionality, doubt, constitutional review, obligatory / Judicial activism.
Headnotes:
The settling of disputes in the protest committee of the Public Procurement Office, which is an
executive body, is not unconstitutional in itself, but the exclusion of administrative courts from
the adjudication of such disputes does not meet the principle pursuant to which all court cases
start in the courts of first instance, and restricts the constitutional competence of the judicial
power.
Every court, when adjudicating a case, must review the constitutionality of applicable law, if
relevant doubts have arisen. They must also do this at their own instigation, rather than wait to
be prompted by parties to proceedings.
Summary:
I. On 7 March 2008 the protest committee of the Public Procurement Office (hereinafter, the
“protest committee”) upheld a complaint by a corporation AS KPK Teedeehitus (hereinafter, the
“corporation”), but did not allow the application for the award of legal aid costs. The corporation
filed an appeal with the Tallinn Circuit Court, requesting the repeal of the protest committee’s
decision to the extent that it failed to award the legal aid costs.
The Tallinn Circuit Court upheld the corporation’s appeal in part, annulling the protest
committee’s decision to the extent that it did not satisfy the application by the corporation for the
award of legal aid costs. The circuit court declared unconstitutional and did not apply Article
129.2 of the Public Procurement Act (hereinafter, the “PPrA”), to the extent that it makes no
provision for somebody lodging a complaint to have recourse to the courts where the protest
committee has turned down their application for the award of legal aid costs, and Article 126.6
PPrA to the extent that it does not allow for the award of legal aid costs incurred in proceedings
before the protest committee when the complaint is upheld. The court delivered the judgment
to the Supreme Court, thus initiating a constitutional review proceeding.
II. When examining the case referred to it by the Constitutional Review Chamber, the Supreme
Court en banc had concerns that in addition to the provisions declared unconstitutional by the
Tallinn Circuit Court, Article 129.1 PPrA could be unconstitutional too. The Supreme Court
justified its “activism” by referring to the second sentence of Article 15.1 of the Constitution and
Article 15.2 of the Constitution. It follows from these articles that courts, when adjudicating a
case, must review the constitutionality of applicable law, if relevant doubts have arisen. They
must also do so on their own initiative and not wait for parties to proceedings to prompt them.
Consequently, a court adjudicating a case, as well as the Supreme Court as the court of
constitutional review, is also competent to review the constitutionality of provisions the
constitutionality of which has not been questioned by parties to the proceedings. Therefore, the
Supreme Court must verify whether the request for constitutional review was submitted by a
competent court, person or body. Within concrete norm control, it is the court which is entitled
to adjudicate the main dispute that has the competence to initiate a constitutional review.
In the present case, which served as the basis of the constitutional review matter, it was Article
129.1 PPrA that gave the circuit court (as an appellate court) the competence to adjudicate the
appeal against the decision of the protest committee. If this provision was unconstitutional and
did not exist, the circuit court should have refused to accept the appeal and the appeal against
the protest committee’s decision should have been adjudicated by an administrative court
instead. The Supreme Court expressed concerns over the conformity of Article 129.1 PPrA
with the provisions on the organisation of the judicial system as established in Chapter XIII of
the Constitution. These provisions describe the procedure for fair and effective protection of
individual rights, the existence of which is one of the characteristics of a state based on the rule
of law. The Supreme Court found that it had the obligation to examine this conformity.
The institutional framework for the resolution of public procurement disputes regulated by
Council Directives 89/665/EEC of 21 December 1989 and 92/13/EEC of 25 February 1992
does not preclude a review of constitutionality of Article 129.1 PPrA. These directives leave
member states with a wide margin of appreciation as to the choice of institutions competent to
resolve public procurement disputes and the establishment of the review procedure. In
exercising this right the legislator is bound by the Estonian Constitution. The legislation should,
in addition to the EU law, be in conformity with the Estonian Constitution.
As to the constitutionality of Article 129.1 PPrA, the Supreme Court was of the opinion that it
was in conformity with the procedural requirement arising from Article 104.2.14 of the
Constitution, as it was passed by a majority of the membership of the Parliament, as is
obligatory for procedural laws. The Court noted, however, that in the interests of clarity it would
be preferable if this regulation were to be found directly in the legislation regulating court
procedure.
However, Article 129.1 PPrA was in conflict with Article 149.1 and 149.2 of the Constitution and
with the first sentence of Article 146 of the Constitution in conjunction with Article 4 of the
Constitution. The obligation of the circuit courts to adjudicate public procurement disputes as a
court of first instance is not in conformity with the constitutional status of circuit courts as
appellate courts. Furthermore, this provision necessitates a review of protest committee
decisions by way of appeal proceedings. The protest committee is not a court of first instance,
but an administrative authority and not a part of the judicial system described in Article 148 of
the Constitution. Its members are not appointed for life. Administrative proceedings conducted
in the protest committee are not comparable to judicial proceedings as regards the procedural
guarantees of parties to the proceedings. The exclusion of administrative courts from the
adjudication of public procurement disputes does not meet the principle pursuant to which all
court cases start in the courts of first instance. An Act which excludes administrative courts
from the adjudication of concrete court cases, so that such cases are heard by an
administrative agency instead, restricts the constitutional competence of the judicial power.
In view of the above the Supreme Court en banc declared Article 129.1 PPrA unconstitutional
and invalid. Due to the unconstitutionality, the circuit court was not competent to review the
appeal filed against the decision of the protest committee; neither was it competent to submit
the request for constitutional review. In this situation the Supreme Court en banc could not
review the request to review the constitutionality of the provisions declared unconstitutional in
the judgment of the Tallinn Circuit Court.
III. Out of eighteen justices, five delivered two dissenting opinions. The five dissenting judges
disagreed with excessive activism of the majority of the Supreme Court en banc. They found
that the Supreme Court could not go beyond the provisions that are relevant to the adjudication
of the case. By declaring Article 129.1 PPrA unconstitutional, the Supreme Court en banc
ignored the requirement of relevance of provisions (which is not permissible from a procedural
angle in the context of concrete norm control). The declaration of unconstitutionality and
invalidity of Article 129.1 PPrA substantially damaged the interests and rights of the party in
whose interests the constitutional review proceeding was initiated. The issue of legal aid costs
in the protest committee, for the resolution of which the person had recourse to the court in the
first place, remained unresolved.
Supplementary information:
The judgment also prompted discussion amongst legal writers.
It has resulted in public procurement disputes now being settled in four instances, as the
provisions determining the protest committee of the Public Procurement Office as an obligatory
pre-trial dispute resolution body remain in force.
Cross-references:
– Decision no. 3-4-1-5-08 of 26.06.2008 of the Constitutional Review Chamber, Bulletin
2008/2 [EST-2008-2-011].
Languages:
Estonian, English.