The recent judgment of the Grand Chamber of the European Court of Human Rights (‘the ECtHR’ or ‘the Court’) in Vinter and Others reflects a very significant change in the Court's attitude to those actions of the states parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the Convention’ or ‘the ECHR’) that consist in the imposition and further execution of whole life sentences. In this judgment, the Court concluded that Article 3 of the Convention – which prohibits torture, inhuman or degrading punishment – requires the reducibility of all whole life sentences as imposed by national courts, in the sense of a review mechanism which allows domestic authorities to conclude whether in the course of a life sentence the legitimate peno-logical grounds justifying the further incarceration of a life prisoner still exist. Moreover, such a mechanism or possibility for review of a whole life sentence must be provided for by a national law and, consequently, must be known to a life prisoner already at the moment of imposition of the whole life sentence. What is also important, a life prisoner, at the outset of his/her sentence, must know when (i.e. after how many years) and under what conditions a review of his/her sentence will take place or may be sought, and what he/she must do to be considered for release. Otherwise, the very imposition of a life sentence by a national court infringes Article 3 of the Convention.

In late February 2013, the ECJ handed down the Åkerberg Fransson preliminary ruling (Fransson), a ten-page decision which tackled the unresolved issue of the application of the EU Charter of Fundamental Rights (the Charter) to domestic measures. Notwithstanding the Advocate General's effort to investigate the theoretical foundations that legitimise this projection of the Charter upon state acts, the ECJ delivered a judgment which largely followed in the pattern of its own anodyne case-law on general principles. The judgment confirmed that the Swedish measures at stake – cumulating administrative and criminal penalties for tax evaders – ‘implemented’ EU law insofar as they contributed to the effective collection of VAT, one of the sources of the EU's budget. As a consequence, it is for the Swedish judge to check their compliance with the Charter's norm on ne bis in idem. This decision confirms that the Charter applies to national measures that do not transpose EU legislation and happen to fall within its scope only incidentally.

Regardless of the relative conservativeness of this finding, its implications are fated to displease member states and the reasoning of the Court was not compelling enough to prevent distinguishing and criticism. The first attack was promptly brought by the German Constitutional Court, which in its anti-terror database decision made clear that it subscribes only to a restrictive reading of Fransson and does not accept that the Charter applies to domestic measures whose objectives are set domestically, even if their purposes are shared by EU legislation.

Case C-355/10 deals with institutional questions and with the delicate issue of intercepting migrants at sea, and thus with fundamental rights. The European Parliament had sought the annulment of a decision of the Council, adopted under the regulatory procedure with scrutiny (PRAC), on the grounds that it exceeded the scope of the implementing power in Article 12(5) of the Schengen Borders Code. The decision laid down rules and guidelines for Frontex maritime operations.

The Court annulled the contested decision because it considered that the provisions on interception measures and search and rescue involved important political choices, and that these provisions contain elements that call for the use of legislation instead of an implementing act. However, the Court maintained the effects of the decision until it is replaced by new rules within a reasonable time. In response to the judgment, the Commission presented a fresh proposal for a regulation on 12 April 2013.

The Supreme Court en banc was forced to make a rushed judgment in a situation of confusion, uncertainty and absence of legal certainty prevailing in the Estonian and the EU legal environment.

Dissenting justice Jaak Luik

On 12 September 2012 the Bundesverfassungsgericht gave the green light for Germany to ratify the Treaty Establishing the European Stability Mechanism (ESM Treaty), but made ratification conditional upon international law arrangements to be made to guarantee an interpretation of the ESM Treaty which would be in line with the German Grundgesetz. Although the constitutional challenge in Germany, which is the largest ‘donor’ to the ESM, was certainly of core importance as to whether the member states would be able to launch the mechanism at all, the constitutional challenges in other member states also deserve academic attention. The reference for a preliminary ruling by the Supreme Court of Ireland raised serious questions concerning the conformity of the ESM Treaty with EU law. In its Pringle decision the Court of Justice dismissed the concerns raised in the reference as being unfounded.

This article focuses on the compatibility of the ‘emergency voting’ mechanism set out in Article 4(4) ESM Treaty with the principles of democracy, the rule of law and sovereignty raised before the Supreme Court of Estonia. The Constitution of the Republic of Estonia [Eesti Vabariigipõhiseadus] (henceforth: the Constitution) and the Acts of the Republic of Estonia do not foresee a separate constitutional court or the possibility of an individual constitutional petition. Thus, the issue of the constitutionality of the emergency voting procedure contained in the ESM Treaty was raised ex officio in abstract constitutional review proceedings by the Estonian Chancellor of Justice [Õiguskantsler], which ‘in Estonia combines the function of the general body of petition and the guardian of constitutionality.’ The petition for review focused on the fact that substantial budgetary decisions could be made in the future under the emergency voting procedure without the involvement of the Estonian parliament. According to the petition, ‘[w]ith accession to the Treaty the budgetary policy choices of the Riigikogu will diminish.’