Strasbourg, 22 January 2002
CCJE (2002) 1
Consultative Council of European Judges (CCJE)
Questionnaire on the conduct, ethics and responsibility of judges: reply submitted by the delegation of Estonia
Questionnaire on the conduct, ethics and responsibility of judges
Note: Appointment to and release from office and liability of judges is regulated by Status of Judges Act. Presently a new draft Courts Act is in the legislative proceeding of the Parliament and will probably be adopted during the first half of 2002.
1. What are the statutory obligations by which judges are bound?
According to the presently valid Status of Judges Act a person who is of high moral character, is suitable to serve as a judge and has higher legal education may serve as a judge.
2. Is there a judge's code of conduct?
There are "Rules of Conduct of Estonian Judges".
2.1. If so, who drafted it and who adopted it?
The rules of conduct of Estonian judges were drafted and adopted by Estonian Association of Judges, which is the professional association of judges. The new draft Courts Act, which is in the legislative proceeding in the Parliament, stipulates that rules of conduct shall be adopted by the general meeting of judges.
2.2. What are the obligations imposed upon judges?
See attached "Rules of Conduct of Estonian Judges".
2.3. Is there provision for sanctions in the event of violation by judges?
Rules of conduct do not impose sanctions but violation of the rules may result in a disciplinary sanction, provided for by the Status of Judges Act.
3. What incompatibilities are there between the duties of judge and other functions or professions?
Judges may not be members of Parliament, municipal councils, or political parties. Judges may not hold any positions in the executive branch or elsewhere except in teaching and research. Judges may not be members of the Board of Directors or founders of public or private companies.
4. In what circumstances can the impartiality or apparent impartiality of judges be called into question in accordance with the law or case-law?
According to law a judge shall be objective and impartial upon discharging his or her duties; in all extra-judicial relations a judge must refrain from everything that may prejudice the authority of administration of justice and the dignity of a judge.
A judge may not participate in the hearing of a case and shall be removed if he or she is personally, directly or indirectly, interested in the outcome of the case or if other circumstances give rise to doubts as to his or her impartiality.
Pursuant to Code of Civil Procedure a judge shall not participate in the hearing of a matter and shall be removed if he or she has participated in a previous hearing of the matter as a witness, expert, interpreter, translator or representative; if he or she is a relative, the spouse or a relative by marriage of a party or other participant in the proceeding.
Pursuant to Code of Criminal Procedure, in the hearing of a criminal matter, the following may not belong to the court panel: persons who are related to one another; persons who are or were participants in the proceeding in the given criminal matter, or who are related to a participant in the proceeding or the spouse of a participant in the proceeding; persons who participated in the given criminal matter as a prosecutor, preliminary investigator, expert, specialist, interpreter, translator, witness or impartial observer of investigative activities.
5 Can judges incur criminal or civil liability for acts committed in the performance of their duties?
Judges bear no personal civil liability for acts committed in course of fulfilling judicial duties. Pursuant to State Liability Act a person may claim compensation from the state for damage caused in the course of judicial proceedings including damage caused by a court decision only if a judge committed a criminal offence in the course of these proceedings. Criminal charges may be brought against a judge if he or she has knowingly rendered a wrong judgement.
5.1. If so, in what circumstances?
Judges shall bear criminal liability for knowingly rendering a court judgement or ruling incompatible with law.
5.2. What is the procedure involved?
Public prosecutor files a petition with the Supreme Court en banc requesting that criminal charges be brought against a judge, appended with a copy of an order of charging the person with the criminal offence. The Supreme Court shall review whether the order of charging the person with the criminal offence and procedure so far are compatible with the requirements of the Criminal Code without checking and assessing evidence. If the Supreme Court finds that the request is compatible with the Criminal Code it shall make a proposal, in writing, to the President of the Republic to give his or her consent to hold the person specified in the request criminally liable. If the Supreme Court finds that the request is not compatible with law, it shall return the request within ten days of the receipt thereof.
A criminal matter against judge is examined pursuant to general procedure. The Chief Justice of the Supreme Court has the right to determine by which court the matter shall be heard.
5.3. What is the competent institution or authority?
During his or her term of office criminal charges may be brought against a judge only on the proposal of the Supreme Court and with the consent of the President of the Republic.
Criminal charges may be brought against the Chief Justice and justices of the Supreme Court only on the proposal of the Legal Chancellor, and with the consent of the majority of the membership of the Riigikogu.
5.4. What sanctions or compensatory measures can be applied?
The consent to initiate a criminal case suspends the term of office of the judge.
According to law a person who has been convicted for an intentionally committed crime must not serve as a judge and he or she shall be released from office.
6. Can judges be subject to disciplinary proceedings?
6.1. In what circumstances?
The grounds for incurring liability are worded in very broad terms in the valid law. Disciplinary charges may be brought against a judge for breach of procedural rules, for other transgressions in office and for behaviour which discredits administration of justice.
6.2. What is the procedure involved?
In case of a doubt that there is a ground for disciplinary liability in the activities of a judge, the circumstances are checked, explanation is requested from the judge and disciplinary proceedings are initiated. Disciplinary cases are head by the Disciplinary Commission, working by the Supreme Court.
6.2. What is the competent institution or authority?
The right to initiate disciplinary proceedings against all judges of the Republic of Estonia rests with the Chief Justice of the Supreme Court; against judges of circuit courts, county, city and administrative courts with the Minister of justice. Disciplinary cases are heard by the Disciplinary Commission working by the Supreme Court, to which the circuit courts, county and city courts and the Supreme Court each elect three of their members. Decisions of the Disciplinary Commission may be appealed to the Supreme court en banc by the initiator of the proceeding and by the judge himself or herself.
6.4. What disciplinary sanctions can be imposed?
The commission may apply one of the following 4 sanctions: warning, reprimand, fine of up to a month's salary, removal from office.
According to § 23 (2) of the Status of Judges Act removal from office as a disciplinary sanction has to be sanctioned by the Supreme Court en banc even if the judge does not dispute the decision of the Disciplinary Commission.
RULES OF CONDUCT OF ESTONIAN JUDGES
Bearing in mind that impartiality, independence and integrity of judges are to be guaranteed in a rule of law society unconditionally,
Considering that Estonia must observe the principles of fair trial and good conduct of judges and legal traditions developed in the world,
Taking into consideration that judges have a central role in safeguarding democracy and legal order,
Bearing in mind that high professional level and flawless conduct of judges constitute a condition and a guarantee of high authority of the court and administration of justice,
Considering that a judge has been empowered to decide on life and freedom, rights, obligations and property of people,
Bearing in mind that the mission of court is to serve the people,
Understanding the moral and legal responsibility resting on us we, Estonian judges, hereby establish for ourselves the following rules of conduct and publicly undertake to observe these.
1. A judge shall preserve the reputation of integrity and independence of the judiciary.
2. A judge shall avoid indecency in all his or her actions and statements.
3. A judge shall fulfil the functions of his or her office impartially, carefully and in the best way possible.
4. A judge shall arrange his life and activities, including legal activities, so that the threat of a possible conflict with judicial duties is minimal.
5. A judge may be engaged in law creation and improvement of the legal and judicial system.
6. A judge shall refrain from political activities and statements reflecting his or her political countenance as incompatible with the judicial office.
7. A judge shall be law-abiding and set an example of observing legal order.
8. These rules do not exclude other rights and freedoms given to judges by law.
Rules related to courts and case management
9. A judge shall have charge of his or her professional level, participate in in-service training and undergo the obligatory minimum in-service training. A judge shall share his or her professional experience with junior colleagues and shall participate in law-related undertakings as a lector or an expert.
10. A judge shall remain calm, composed and dignified in his or her work.
11. A judge shall be patient, dignified, polite with all colleagues, court employees and participants in proceedings, requiring the same attitude from others.
12. The behaviour of a judge shall not only be impartial and fair but it must also appear so to everyone. Any conduct indicating possible partiality of judge, such as becoming irritated, getting angry, rising his or her voice, facial expression and body language revealing attitude, and the like is to be avoided, as they may leave the impression that the judge is not impartial and is not capable or willing to examine a case fairly and honestly. At a court session a judge shall refrain from unnecessary and irrelevant comments and remarks.
13. A judge shall resolve cases in optimal time, avoiding hurrying and superficiality and refraining from delaying decision-making on formal and unreasonable grounds.
14. A judge shall refrain from passing remarks concerning pending or forthcoming proceedings and the possible outcomes thereof and shall request the same attitude from court employees. This requirement does not prevent a judge from explaining the procedure of court proceedings.
15. A judge shall preserve the confidentiality of information he or she has received in the course of court proceedings and shall require the same from other court employees. This rule does not exempt a judge from obligation, in the interests of legal order, to inform pertinent instances of committed offences.
Rules concerning subordinate relations
16. A judge vested with administrative duties shall fulfil these carefully, maintaining professional competence and composure and facilitating the work of other judges and court employees.
17. A judge shall set identical requirements to the work of his or her colleagues and court employees.
18. A judge must not conceal the incidents of undignified conduct of his or her colleagues.
19. A judge shall use his or her official power and name only as appropriate, refraining from selfish and undignified use thereof.
Rules guaranteeing independence and impartiality
20. A judge shall avoid a conflict of interests. He or she shall not allow family, social or other relations to affect his or her work as a judge. A judge shall not sacrifice the prestige of his office to his or her private interests.
21. A judge is independent from fellow judges and judges of higher court instances in rendering judgements.
22. In relations with the public and the press a judge shall avoid expressing his or her personal views on specific cases.
23. A judge shall avoid engaging in activities which may prejudice his or her independence from political forces. This does not exclude his or her right to personal views concerning political issues.
24. A judge shall refrain from political and business lunches if these prejudice his or her impartiality and may give rise to a conflict of interests.
25. A judge shall not participate in political or profit-making organisations as a leader or official thereof. He or she shall not either in speech or in writing support political movements or the candidates thereof and shall not request the support of foundations to political organisations or candidates thereof.
26. A judge must remove himself or herself from a case if his or her impartiality can be questioned, in addition to cases prescribed by law, when he or she has a prejudice concerning a party; when he or she has close personal or family relations with parties or when he or she has private information concerning the facts related to proceedings or when he or she has previously given legal counselling to the parties or when he or she is aware that the outcome may affect him or her, his or her family members, relatives or friends.
Rules concerning extra-judicial activities
27. A judge shall participate in social and cultural life in conformity with the traditions of good conduct and shall mind that this does not prejudice the dignity of his or her office and is not in conflict with the duties of his or her office.
28. A judge may be active in the third sector and in charity organisations, at the same time avoiding a conflict of interests and being taken advantage of against the interests of justice.
29. A judge shall refrain from financial and business transactions that may give rise to doubts as to the impartiality of administration of justice. He or she has to remove himself or herself in the event of a conflict of financial or property interests of himself or herself, those closest to him or her, or friends or colleagues.
30. A judge may own property, make investments, make transactions and participate in activities aimed at generating income, considering the manners of good conduct and fair business.
He or she shall not participate in business activities as an official, manager or employee. Investments of a judge should be minimal so that the need for removal would rise only on rare instances and that it would not prejudice his or her work as a judge.
31. A judge may participate in any activity aimed at promoting the judicial system. He or she may give consultations to representatives of the executive and the legislative branches concerning general issues of administration of justice.
32. A judge may belong to professional organisations both as an ordinary member and an official.
Rules outside work and professional relations
33. A judge shall refrain from using narcotics, excessive usage of alcohol and being in public places in the state of intoxication.
34. A judge shall always behave correctly and politely everywhere and to everyone and shall avoid indecency of expressions in front of everyone.
35. A judge shall dress correctly and unpretentiously and shall avoid activities which may bring discredit upon the profession and to administration of justice.
Adopted by the general meeting of Estonian Association of Judges on 15 March 1994.