Strasbourg, 12 February 2001
CCJE (2001) 5
Consultative Council of European Judges (CCJE)
Questionnaire on the independence of judges, their appointment and careers, and funding of the courts: reply submitted by Estonia
I. THE INDEPENDENCE OF JUDGES
1. Is the independence of judges guaranteed by the Constitution or by legislation?
The independence of judges is guaranteed by legislation. Article 147 of the Constitution says that the legal status of judges and guarantees for their independence shall be provided by law.
2. What institutional safeguards are there with regard to the independence of judges?
The independence of judges is guaranteed by the procedures for nomination, dismissal or recall prescribed by law, by the immunity granted to judges, by the procedures for the administration of justice prescribed by law, by the secrecy of meetings for the adoption of decisions and by the ban on demanding the disclosure of the secrecy, by liability for displaying disrespect towards a judge or for the interference in the trial of the case, by the creation of the organizational and technical conditions necessary for the work of the courts as well as by providing judges with financial and social guarantees worthy of their office.
3. Is the irremovability of judges recognised?
Judges may be removed from office only by a court judgment.
4. Can the decisions handed down by judges be reviewed or set aside outside the appeals procedures provided for by law, by institutions othes than the courts of appeal or cassation?
The decisions handed down by judges can be reviewed only by courts of appeal or cassation pursuant to the procedures provided by law.
5. Can a case be withdrawn from a judge?
A case can not be withdrawn from a judge. A judge is required to remove himself or herself if he or she is directly or indirectly personally interested in the outcome of the matter or if other circumstances give reason to doubt his or her impartiality.
II. THE APPOINTMENT OF JUDGES AND THEIR CAREERS
1. What qualifications are required and what conditions must be met in order to become a judge?
Judges must be Estonian citizens with high moral character and must have a law degree. A person who has been convicted of an intentional crime; has been dismissed, recalled or expelled from a position or an office which requires a high level of legal qualification on the grounds of his/her being unsuitable to continue service; or a person who is unfit to serve as a judge for reasons of his/her health may not be a judge. Judges are not allowed to belong to political parties or to hold any paid office except teaching or scientific research.
2. Are judges recruited by competitive examination, on the basis of a professional examination or on the basis of their qualifications?
Judges are recruited on the basis of a professional examination. The Judges`s Examination Committee which includes 3 first instance judges, 3 second instance judges, 3 judges from the Supreme Court, a scholar from the Tartu University Faculty of Law and a representative of the Ministry of Justice, examines applicants for the office of judge.
3. What level of studies is required to become a judge?
A person who has higher legal education may apply for the position of judge.
4. Is previous professional experience required?
Previous professional experience is required. There is an institute for applicants for the office of judge to provide professional training for persons who have not previously served as a judge or in another position, which requires a high level of legal qualification. Professional training for applicants for the office of judge is held under the direction of a judge appointed by the Chief Justice of the Supreme Court, continues for up to 2 years in the courts and in the Ministry of Justice and ends with the successful completion of the judge's examination.
5. Are there any age requirements?
There are age requirements for different categories of judges. For an administrative judge the minimum age requirement is 24 years, for county, city or district court judge - 25 years, for judge of the Supreme Court - 30 years.
6. Are judges elected?
No, judges are not elected.
7. Or are they appointed?
Candidates for judges in county, city, administrative and district courts are presented for appointment to office by the Chief Justice of the Supreme Court. These judges are appointed to office by the President. Members of the Supreme Court are presented for appointment to office by the Chief Justice of The Supreme Court as well and they are appointed to office by the Parliament (Riigikogu).
8. Or are they selected in another way?
There are not more ways for selection of judges.
9. Which authority is responsible for recruiting judges?
Vacancies in judicial office are announced by the Minister of Justice in the Riigi Teataja (Official Gazette). Persons who meet the requirements can submit a written application to be a candidate to the Chief Justice of the Supreme Court. The Supreme Court en banc reviews the candidates' applications with the participation of the Minister of Justice and recommends up to 3 candidates for a vacant position.
10. Does any authority independent of the government and the administration take part in the selection or promotion process? If so, specify the composition and the role of this body?
The Judge's Examination Committee (see point 2 for composition) examines applicants for the office of judge and assesses the suitability of candidates for judge for service in the respective level of court. The Supreme Court en banc (all 17 members of the Supreme Court belong to the Supreme Court en banc), which is totally independent of the government and the administration, reviews the candidates` applications with the participation of the Minister of Justice (who participates with right to speak but has no right to vote) and recommends up to 3 candidates for a vacant position.
11. How and by whom are judges promoted?
There is no system of career judges. If a judge wishes to serve in a higher court he/she must apply to vacant position of judge together with other applicants, following the procedure.
12. What are the criteria for promoting judges? Are they objectively defined?
The criteria for promoting judges are not objectively defined. Generally the Supreme Court en banc does not recommend to higher court an applicant who has not served as judge in lower instance, also the Supreme Court will take into consideration an opinion of the chief justice of the court which has a vacancy.
13. In what cases can a judge be removed from office?
Judges may be recalled only by a court decision. A removal from office is one of the forms of punishment that may be imposed on a judge for a disciplinary infringement. A removal from office must be confirmed as a disciplinary punishment by the Supreme Court en banc. Also, judges may be removed from office:
1.) due to a state of health, which obstructs the judge from continuing to serve as a judge;
2.) upon attaining the maximum age specified by law;
3.) if the judge is unsuitable for office within 3 years of his or her appointment to office (The Judge's Examination Committee gives its opinion on the dismissal of a judge from office on the grounds of the judge being unsuitable for office, within 3 years of the judge's appointment to office);
4.) due to the reorganization of the courts or a reduction in the number of judges;
5.) if circumstances prescribed by Law arise, which render it impossible for him or her to continue to serve as a judge.
14. Do you wish to make any comments or mention any practical difficulties with regard to the independence and appointment of judges in your country?
There are some problems due to the fact that courts of the first and second level are under the administration of Ministry of Justice and the Government of the Republic Act gives the Ministry of Justice the right to exercise supervision over the courts. Also, the financing of training of judges are provided in the budget of the Ministry of Justice and Ministry does not consider with wishes and opinions of judges when organising the training.
III. THE FUNDING OF THE COURTS
1. How are the courts' activities funded?
The courts' activities are funded from the annual state budget.
2. Give a brief description of the rules governing the setting of the budget for the judicial system.
The proceeding of the draft budget differs in the Supreme Court and in two inferior court levels. The Supreme Court submits its budget proposal directly to the Ministry of Finance, but other courts do it through the Ministry of Justice. However, there usually appears to be a problematic procedural practice that the officials of the ministries can reduce the original proposals of the judiciary and basically there are no effective remedies for the judicial institutions to protect their interests. From the Ministry of Finance a consolidated draft budget goes to the Government and from the Government to the Parliament; however, the judiciary cannot further negotiate their budget and advance their interests in the Government and the Parliament. In reality the requirements of independence and impartiality of the judiciary restrict their opportunities to employing the support from the political organisations. Similarly, they do not constitute a comparably influential social group to affect the policy decisions in the budgetary process. In the Annual Budget Act in force the Supreme Court has a separate budget, while the general assignations to the rest of the Judiciary are included in the budget of the Ministry of Justice. (see also question 7)
3. Do judges have any say whatsoever in decisions concerning funding or in managing the budget?
In the Estonian system of administration in principle the Chairman of the court is made responsible for the general administration of the court's budget and therefore has wide rights and duties in managing the budget. The Chief Justice of the Supreme Court confirms the annual budget within the limits determined by the Parliament and makes certain decisions on principles, but most of the daily administration has been delegated to the Director. The lower courts generally act on the same principles, but the Chairmen fix the courts' annual budgets in the limits determined by the Ministry of Justice.
4. Do judges have adequate support stuff and equipment, in particular office automation and data processing facilities, to ensure that they can act efficiently and without undue delay?
Generalisation is complicated by the fact that the situation differs by courts. However, it can be claimed that there is room for considerable improvement in this field, which applies especially to the first level courts. The courts of all instances are inadequately staffed with law clerks/advisers to help judge with the preparation of cases for hearing and decisions.
5. Do judges encounter other material difficulties, which prevent them from acting efficiently?
There is a general problem that the state is not fully competitive on the labour market for qualified specialists. Attracting the candidates to fulfil the vacant positions of judges, counseling law clerks, information technology specialists, etc. continues to be a problem.
6. Are appropriate measures taken to assign non-judicial tasks to other persons?
Again, the situation differs by courts, but basically it depends on the Chairman and the work arrangement of a specific court.
7. General comments on the funding of the courts
The system of budgeting is not the most appropriate arrangement for the Judiciary, because it does not sufficiently allow advancing the financial needs for good administration of justice. The Supreme Court's budget is substantially determined with the negotiations between the representatives of the court and the officials of the Ministry of Finance. In principle the appeal against non-reconciled modifications (deductions) can be made to the Minister of Finance, the Government, and finally to the Parliament, but in practice this does not adequately guarantee the protection of the court's needs. Preference should be given to a procedure where the budget is directly submitted to the Government and the Parliament, and the deductions can be made only under public attention and by those politically responsible. The lower courts have even less possibilities to articulate their needs, because their interests and needs are articulated by the Ministry of Justice to the Ministry of Finance, the Government and the Parliament. (see also question 2)