The Context of the 1932 Judgment of the Estonian Supreme

In 1932, the Estonian Supreme Court en banc had to solve a dispute on passage rights in the Viro Strait.⁵⁴⁸ The case concerned a Hungarian-flagged steamship Hullam which was involved in traffic in alcoholic liquors 9.6 miles north of Vaindloo Island in the Estonian 12-miles-wide customs zone (exact location:

Latitude 59 59,0 (N), longitude 26 23,0 (E)).⁵⁴⁹ The ship was anchored and its cargo⁵⁵⁰ was being unloaded to a Panama-flagged yacht Elba and to Estonian boats for shipping to Estonia.⁵⁵¹ The ship (along with its cargo) was arrested by the Estonian Coast Guard and her deputy captain (Estonian citizen) charged with breaching of the Estonian Tolls Act.⁵⁵² The courts of first and second instance together with the Estonian Prosecutor’s Office found that the Estonian Coast Guard did not have the right to arrest the ship under the legal framework of the 1925 Helsinki Convention, whereas the Estonian Ministry of Economics and the Customs Authority were of the opposite opinion.⁵⁵³

It is a rare case in the jurisprudence of the Estonian Supreme Court, as it focuses on issues of the law of the sea, not civil, criminal or administrative law upon which the court mostly had to decide. The main competence of the Supreme Court lay in the review of court judgements by way of cassation pro-ceedings in its Administrative, Civil and Criminal Chambers. At the time, the Court did not exercise formally constitutional review. The Supreme Court en banc was competent inter alia to review cases that had caused disputes in prac-tice.⁵⁵⁴ To this category falls also the case on passage rights in the Viro Strait.

Due to the disparate views on the passage rights in the Gulf Finland between the Estonian Border Guard and the Ministry of Economics on the one hand and

548 Judgment of the Supreme Court of Estonia en banc, 01.10.1932. – R. Rägo (toim).

Riigikohtu 1932. a. otsused. Tartu: Õigus 1934, p. 8. Reprinted in T. Anepaio (koost).

Riigikohus. Otsuste valikkogumik 1920–1940. Tartu: Elmatar 1999, pp. 57–64.

549 ERA.1356.1.302, pp. 1, 24.

550 For the detailed description of its cargo, see ERA.1356.1.302, p. 24(verso).

551 Ibid, pp. 8, 25(verso).

552 Ibid, pp. 1–2, 9(verso), 24(verso),

553 Ibid, p. 1.

554 T. Anepaio. Eesti Vabariigi Riigikohus. Eesti Jurist 1994(4), p. 26.

the Tallinn-Haapsalu circuit court and the national Court of Appeal on the other, the Supreme Court of Estonia en banc had to decide upon the request of the Ministry of Economics in 1932 whether foreign ships were entitled to freedom of navigation under the high seas freedoms through the Estonian 12-miles-wide control zone in the Gulf of Finland as established under the 1925 Helsinki Con-vention for the Suppression of the Contraband Traffic in Alcoholic Liquors. The Estonian Border Guard and the Ministry of Economics maintained that Estonia was bound to ensure compliance with its legal acts on tax and customs in the Viro Strait in view of ships involved in contraband traffic in alcoholic liquors in the high seas, whereas the courts found that under the legal framework of the 1925 Helsinki Convention, ships transiting the Gulf of Finland in its high seas corridor enjoy freedom of navigation and thus cannot be subjected to any cus-toms control or other hindrances to their passage.

The line of argumentation in the Supreme Court’s judgment reflected at the time to a significant extent the views of the persons that drafted it. In the mod-ern Supreme Court of Estonia, the draft judgment, which is deliberated by the Chamber in private, is generally drafted by a justice and the Chamber’s coun-sellor, whereas prior to 1940, the judgment of the Supreme Court was drafted essentially solely by the justice that had to present the case in the private delib-erations of the Chamber.⁵⁵⁵ Also, the State prosecutor (somewhat similar institu-tion to the nine Advocates General of the European Court of Justice), who was solely appointed to the Supreme Court along with his aid, had to deliver his independent⁵⁵⁶ opinion on the case. This opinion was also discussed during the deliberations in the Chamber. It may be assumed that the decisive figures in connection with the 1932 judgment of the Supreme Court en banc were the presenting justice Peeter Kann,⁵⁵⁷ Kaarel Parts as the Chief Justice of the Supreme Court from 1920 to 1940 (acted also as the chairman in the proceed-ings) and the prosecutor Richard Rägo.⁵⁵⁸

The Supreme Court was independent of the Estonian Government as its jus-tices were appointed by the Parliament.⁵⁵⁹ Many justices had been active in Estonian politics previously. The Chief Justice Kaarel Parts had been the founding member of the centre-right Estonian People’s Party, member of the Russian II State Duma and the chairman of the Estonian Maanõukogu,⁵⁶⁰ which was the first Estonian Parliament-like assembly established in the Russian Empire in 1917. Unlike many other justices of the Supreme Court, who had studied law in the university of St Petersburg (where their fellow-Estonian

555 Oral explanations of T. Anepaio, 12.10.2015.

556 The prosecutor was also independent of the justices (including the Chief Justice) of the Supreme Court.

557 ERA.1356.1.302, p. 1.

558 See Judgment 01.10.1932, op. cit., p. 8. R. Rägo was appointed later as justice of the Supreme Court in 1939.

559 Anepaio 1994, op. cit., p. 29.

560 Ibid, p. 31.

Friedrich Martens lectured on international law), Kaarel Parts graduated from Tartu University.⁵⁶¹

At the time of the 1932 judgment, the Supreme Court composed of well-experienced justices. Five (38 %) of the thirteen justices had been in office since the establishment of the Supreme Court in 1920 (i.e. 13 years).⁵⁶² At the time, three justices were non-ethnic Estonians: Dmitri Verhoustinski was Rus-sian, whereas Harald Johannes Jucum and Victor Karl Maximilian Ditmar were Germans.⁵⁶³ In general, the justices were not outstanding experts on inter-national law.⁵⁶⁴ The Supreme Court en banc decided to consult the Professor of International law at the University of Tartu Ants Piip for expert advice and asked the Estonian Ministry of Foreign Affairs to send the map of the high seas corridor in the Gulf of Finland.⁵⁶⁵

It is, however, likely that in addition to the Chief Justice, presenting justice and the prosecutor, one of the justices that had significant influence on the sub-stance of the 1932 judgment en banc was the member of the former Baltic nobility Victor Ditmar. Justice Ditmar had prior to his appointment to the Supreme Court in 1924 been counsellor at the Estonian Embassy in the Soviet Union, senator at the highest judicial organ of the imperial Russia – the Gov-erning Senate – and had also worked at the appellate court in St Petersburg.⁵⁶⁶ Although generally the deliberations of the justices in the Chamber did not nec-essarily have a profound influence on the text of the draft judgment as prepared by the presenting justice, this might not have been the case with regard to the 1932 judgment en banc due to its political connotations⁵⁶⁷ and great importance.

It is possible that at least during the private deliberations in the Chamber, justice Ditmar was active since he was well-experienced in the field of international law.⁵⁶⁸ Notably, the judgment includes a hand-written short comment to testify that justice Jaan Lõo disagreed with the ruling.⁵⁶⁹

As will be subsequently examined,⁵⁷⁰ the judgment is in many aspects diffi-cult to explain as being in accordance with international law, in particular with the legal framework of the 1925 Helsinki Convention. However, in other

561 Ibid, p. 32.

562 Ibid, pp. 32–33.

563 Ibid, p. 31.

564 Notably, the former Estonian foreign minister and ambassador Aleksander Hellat was appointed as the justice of the Supreme Court a year after the 1932 judgment en banc (served from February 9^th, 1933 to October 18^th, 1940). See Supreme Court of Estonia.

– Previous Members of the Supreme Court. Accessible: http://www.riigikohus.ee/

?id=103 (14.09.2016).

565 ERA.1356.1.302, p. 10. The map is accessible at the Estonian National Archives:

ERA.957.13.651, p. 4. For a copy of the map see map 2 in Annex 1.

566 Anepaio 1994, op. cit., p. 31.

567 See e.g. ERA.957.14.327, pp. 3–76.

568 Oral explanations of T. Anepaio, 12.10.2015.

569 ERA.1356.1.302, p. 18(verso).

570 See infra section 2 of Part IV.

aspects it did and, more significantly, it was in some instances not in accordance with the then current law but similar in content to the later LOSC straits regime.

1.2. Passage Rights in the Viro Strait in the 1920s and 1930s in the