Strasbourg, 23 January 2007

CCJE REP(2007)23
English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2007 CCJE opinion concerning the councils for the judiciary : Reply submitted by the delegation of Estonia

Part I - General context concerning the judiciary

1. Is there possible interference of the legislative power concerning judges? If yes, please specify.

The Judiciary of Estonia is independent from the legislative power. In Estonia the division of powers is granted in the Constitution of the Republic. Article 4 of the Constitution states that the activities of the Riigikogu (the Parliament of Estonia), the President of the Republic, the Government of the Republic, and the courts shall be organised on the principle of separation and balance of powers.

The interaction between the legislative power and the judiciary can however be noticed in the following aspects:

- The legislator adopts acts related to the court administration, court procedure and substantial law;
- The parliament fixes, in the framework of adopting the state budget, the expenses available for the judiciary;
- The parliament appoints justices of the Supreme Court. Justices of the Supreme Court take the oath of office before the Riigikogu; the Riigikogu also releases the justices of the Supreme Court from office;
- Criminal charges may be brought against the Chief Justice and justices of the Supreme Court only with the consent of the majority of the membership of the Riigikogu;
- Two members of the parliament are represented in the Council for Administration of Courts;
- Once a year, at the spring session of the Riigikogu, the Chief Justice of the Supreme Court presents a review to the Riigikogu concerning courts administration, administration of justice and the uniform application of law.

2. Is it possible for the legislative power, the Parliament or the executive power/the government to order investigations or to establish commissions :

§ in general concerning judges? If yes, please specify.

It is possible to some extent. The principle of separation and balance of powers must however be respected.

The Parliament:

Besides the regular permanent committees, the parliament can form select committees, committees of investigation and problem committees provided that the conditions for forming such committees are met.

The parliament can form select committees pursuant to law, and in order to perform functions arising from Acts or international agreements. A select committee is formed by a resolution of the Riigikogu, which sets out the composition, the duties and procedure for reporting the activities of the committee.
Committee of investigation can be formed by the resolution of the Riigikogu in order to investigate the circumstances relating to a matter of public interest. The resolution of the Riigikogu determines the composition of the committee, duties and duration of authority. A committee of investigation presents an interim report on its activity at least once a year and upon termination of its activities, a final report to the Riigikogu.
Committee of investigation has the right to summon persons to appear before the committee and to demand information and documents necessary for the performance of its functions. Hindering the work of committee of investigation can be punishable by a fine.
Problem committee may be formed to work through a problem of significant importance. A problem committee can be formed by the resolution of the Riigikogu, which sets out the composition, the duties and duration of authority. At the end of its activities the committee presents its final report to the Riigikogu.

None of the acts and laws related to the judiciary and courts administration foresees a formation of a select, investigation or problem committee of the parliament. However, theoretically it follows from the above that if there is an issue concerning judges which the parliament sees as a matter of public interest and/or a problem of significant importance, the parliament can form committees concerning judicial matters provided that the division of powers will be respected.

The final reports presented at the end of the activities of such committees do not have a legally binding force; they are to be seen as recommendations.

So far no such committees concerning judges have been formed.

There exists, however, a Select Committee on the Application of Anti-Corruption Act. The objective of this committee is to discharge duties arising from the Anti-Corruption Act and to promote the universal implementation of measures for preventing corruption. The Committee is the depository of economic interests' declarations. Among others also the Chief Justice of the Supreme Court and other members of the Supreme Court, as well as the presidents of the district courts and county courts submit to the Committee a declaration of economic interests.

The other select, investigation and problem committees indirectly linked to judicial issues are the Riigikogu Committee of Investigation to Ascertain the Circumstances Related to the Export of Military Equipment from the Territory of the Republic of Estonia on the Ferry Estonia in 1994 (activities terminated); the Riigikogu Select Committee on the Control of State Budget and the Security Authorities Surveillance Committee of the Riigikogu (see below).

The Government:

According to the Government of the Republic Act the government may form a government committee by an order, specifying the functions and members of the government committee and the government agency which services the committee. The Government appoints the chairman of the committee. A government committee has the right to obtain documents and other information necessary for its work from state agencies and local government agencies. The government committee must of course remain within the competences given to the government by the Constitution, laws and other relevant legal acts.

A minister may also form, within the area of government of his or her ministry, advisory committees and councils, specifying their functions and procedure.

The Chancellor of Justice:

Besides the above mentioned possibilities to form the committees, there exists an institution of a Chancellor of Justice which is not part of the legislative, executive or judicial powers, and is neither a political nor a law enforcement body, but has certain functions also regarding the judges. The institution of the Chancellor of Justice is established by the Constitution. The Chancellor of Justice is appointed by the Riigikogu on the proposal of the President of the Republic and combines the function of a general body of petition (ombudsman) and the guardian of constitutionality. Such a combined competence is unique internationally. The Chancellor of Justice observes the Constitution and his/her conscience. He/she has a right to make a proposal to the Riigikogu that criminal charges be brought against the Chief Justice of the Supreme Court, or a justice of the Supreme Court. At the same time the Chancellor of Justice has also the right to commence disciplinary proceedings against all judges and the Chief Justice of the Supreme Court. In disciplinary cases the Chancellor of Justice can collect necessary documents and proof. The Chancellor of Justice is also a member of the Council for Administration of Courts.

§ concerning judicial performance? No

§ concerning facts already submitted to courts? No

§ concerning procedural acts (eg. telephonic tapping, police custody)

Security Authorities Surveillance Committee of the Riigikogu is a select committee of the parliament which has been established to exercise supervision over the legality of surveillance and the activities of the Security Police. The Committee monitors the conformity of the activities of the Security Police Board with the Constitution of the Republic of Estonia, the Surveillance Act, the Procedure for Registration and Disclosure of Persons who Have Served in or Co-operated with Intelligence or Counter-intelligence Organisations of Security Organisations or Military Forces of States which Have Occupied Estonia Act, the State Secrets Act and other legal acts, and the compliance of the activities of the Police Board, the Border Guard Administration, the General Staff of the Defence Forces, the Prison Board and the Customs Board with the Surveillance Act. The authority of the Committee ends at the termination of the authority of the present Riigikogu.

3. Is there possible interference of the executive power concerning judges?

Yes, to some extent. The principle of separation and balance of powers must however be respected.

The Government of the Republic of Estonia has a political responsibility in granting the administration of the courts of first instance, including administrative courts and courts of appeal, although they are administered in co-operation between the Ministry of Justice and the Council for Administration of Courts. The interference of the executive power is reflected in budgetary issues: the government influences the formation of the budget of the whole judiciary in preparing the draft state budget. However, it must be noted that the amount of judges' salary is provided by law and is therefore free from any influence of the executive power. The draft budget of the courts of first instance and courts of appeal constitutes a part of the budget of the area of government of the Ministry of Justice and is approved by the Minister of Justice. The Supreme Court enjoys a status of a constitutional institution in all phases of drafting and executing the budget. The same rules as to the ministries apply to the Supreme Court: the Supreme Court presents its draft budget to the Ministry of Finance and starts then budgetary negotiations. The Government also establishes the bases and procedure of the mission expenses to be reimbursed to judges.
The Minister of Justice as a member of the government has certain influence on administration of the courts of first instance and courts of appeal: he or she determines on the approval of the Council for Administration of Courts the exact location and service areas of courthouses and appoints the presidents of the courts as well as the (administrative) directors of the courts. Nevertheless, the courts of first instance and courts of appeal enjoy, according to the Courts Act, a special status. The authority of the Minister of Justice is therefore much more restricted than in administering the regular area of government of the ministry. However, the Minister of Justice has the power to monitor how the presidents of the courts of first instance and courts of appeal administer their jurisdictions and to ask them to provide reports on proper functioning of justice and an annual statistical report of the work of their respective courts. The Minister of Justice may release the president of a court of first instance and of a court of appeal if the respective president of the court has wrongfully failed to perform his or her duties to a material extent. So far however, it has never occurred in practice. At the same time the Minister of Justice has no right of command or disciplinary authority over the judges.
The Minister of Justice also takes part in the work of the Council for Administration of Courts with the right to speak. Another member of the executive at the Council for Administration of Courts is the Chief Public Prosecutor or a public prosecutor appointed by him or her. The Ministry of Justice prepares materials and provides technical service for the Council for Administration of Courts and thus has also a possibility to influence the work of the Council. Representatives of the Ministry of Justice and the Public Prosecutor's Office are members of the Judge's T raining Committee and the Judge’s Examination Committee. The Ministry of Justice is also represented at the Assistant Judge’s Examination Committee.

The Ministry of Justice is also the chief processor of the database of the Courts information system, which is a state agency database founded by the Minister of Justice.

Also, a judge may be transferred to the service of the Ministry of Justice at his or her request and with the consent of the president of the court. During service in the Ministry of Justice, the authority of the judge shall be suspended. He or she shall, however, retain the judge’s salary and other guarantees during service.

Besides the Government, the Public Prosecutor's Office and the Security Board, the State Audit Office and the Local Government authorities also interfere with the judiciary. The State Audit Office carries out an economic control of the courts. Another influence of the executive can be seen in the fact that the candidate for judicial office must pass a security check before being appointed judge. The security check is carried out by The Security Police Board. The local government is involved in appointing the lay judges: a local government council shall elect the candidates for lay judge. The lay judges are appointed by the committee for appointment of candidates for lay judge which comprises among others of one member of the local government council elected by the council from each local government of the territorial jurisdiction of the court.

Some legal entities of public law, such as the Council of Estonian Bar Association, the Notaries Association and the University of Tartu are represented in the self-governing bodies of judges (Member of the Bar Association is represented at the Council for Administration of Courts; member of Notaries Association is a member of the Assistant Judge’s Examination Committee; the University of Tartu is represented at the Judge's Training Committee and the Judge’s Examination Committee).

4. If yes, is it possible for the executive power to interfere:

§ in selection, training, career, disciplinary procedures of judges? (if yes, please specify which authority from the executive power)

The judges are appointed by the President of the Republic on the proposal of the Supreme Court in plenary session (Supreme Court en banc). The Supreme Court justices are appointed by the Parliament on the proposal of the Chief Justice of the Supreme Court.

However, the Minister of Justice decides on the number of judges and of the candidates for judicial office needed for the courts of first instance and courts of appeal; announces a vacancy for a judge and the candidate for judicial office in the courts of first instance and the courts of appeal. The Minister of Justice is also responsible for making a proposal for a judge to be transferred from one court to another. It must be noted, though, that a transfer of a judge to another court of the same or a lower level is possible only with the consent of the judge.
In selection of judges the executive power has only an indirect influence in Judge's Examination Committee. Representatives of the Ministry of Justice and the Public Prosecutor's Office are members of the Judge's Training Committee and the Judge’s Examination Committee. The Ministry of Justice is also represented at the Assistant Judge’s Examination Committee.
The Minister of Justice (the executive power as whole) has no right of command or disciplinary authority over the judges.
At the same time the Chancellor of Justice has the right to commence disciplinary proceedings against all judges and the Chief Justice of the Supreme Court (about the Chancellor of Justice see above answer to question number 2).

§ in designation of presidents of courts? (if yes, please specify which authority from the executive power)

The Minister of Justice appoints the presidents of the courts of first instance and of appeal.
The Chief Justice of the Supreme Court is appointed by the Parliament on the proposal of the President.
The Minister of Justice may release the president of a court of first instance and of a court of appeal if the respective president of the court has failed to perform his or her duties wrongfully to a material extent; so far it has never happened.

§ in management of courts? (if yes, please specify which authority from the executive power)

The Government of the Republic of Estonia has a political responsibility in granting the administration of the courts of first instance, including administrative courts and courts of appeal.
The government influences the formation of the budget of the whole judiciary in preparing the draft state budget. The draft budget of the courts of first instance and courts of appeal are part of the budget of the area of government of the Ministry of Justice and approved by the Minister of Justice.
However, it must be noted that the amount of judges' salary is provided by law and is therefore free from any influence of the executive power.
The Minister of Justice as a member of the government has certain influence on administration of the courts of first instance and courts of appeal.
The Minister of Justice also takes part in the work of the Council for Administration of Courts with the right to speak. Another member of the executive at the Council for Administration of Courts is the Chief Public Prosecutor or a public prosecutor appointed by him or her.

5. Is the judicial staff working under the authority of:

§ a judge?
§ the president of the court?
§ the Ministry of Justice?

The structure of courts and the composition of the staff of court officers is determined by the (administrative) director of court, except in the field related to the performance of the function of administration of justice. In this field, the structure of the court and the composition of the staff of court officers is determined by the president of the court. Thus, there is staff working under the authority of both - the director of the court and the president of the court.
The director of court organises the administrating of affairs of the judicial institution, the use of the assets of the judicial institution, prepares with the approval of the president of the court, the draft budget of the judicial institution and submits the draft budget to the Minister of Justice; controls the budgetary funds of the judicial institution; is responsible for the organisation of accounting of the judicial institution; appoints court officers to office and releases them from office; performs other duties assigned to him or her by the internal rules of the court and the internal rules of the court office.
The Minister of Justice may give directives to organise issues within the area of activity of directors of court.
A director of court must have higher education. Directors of courts of the first instance and courts of appeal are appointed to office by the Minister of Justice on the basis of a public competition. The Minister of Justice may decide that several judicial institutions have one director of court.

6. What are the competences of the president of the Court:

§ to evaluate the work of the judges of the court?

The judges are independent in their decision making. Thus, the president of the court cannot interfere in the decision making of a specific pending case assigned to a judge. The president of the court however exercises supervisory control over the administration of justice pursuant to the requirements, over the performance of duties by judges and over the forwarding of the data of the courts information system pursuant to the established procedure.

§ to distribute the work between judges?

Not really, although he or she is, of course, responsible for the proper administration of justice in the court. In Estonia the general principles of the division of tasks between judges of courts of the first instance and courts of appeal are prescribed in the division of tasks plan, which is approved by the full court of each court (all judges of the respective court together as a decision maker). Matters received by the court for hearing are divided between judges at random and on bases determined in the division of tasks plan. The distribution of the matters must ensure equal workload of judges within a court. The Council for Administration of Courts may adopt additional principles for the preparing of the division of tasks plan of judges.

At the Supreme Court, according to the internal rules of Supreme Court, the president of the chamber distributes the work between judges.

§ to act as a disciplinary authority vis-à-vis judges?

Yes. Disciplinary proceedings are commenced if elements of a disciplinary offence become evident. These can be a failure to perform or an inappropriate performance of official duties, but also an indecent act of a judge. Disciplinary proceedings are commenced by preparation of disciplinary charges. The president of a court has the right to commence disciplinary proceedings against the judges of the same court. The president of an appellate court has the right to commence disciplinary proceedings against judges of courts of first instance in his territorial jurisdiction. The Chief Justice of the Supreme Court and the Chancellor of Justice (see above answer to question number 2) have the right to commence disciplinary proceedings against all judges. The Supreme Court en banc has the right to commence disciplinary proceedings against the Chief Justice of the Supreme Court.

§ to intervene in the career of judges?

Directly not, with one exception. According to the Courts Act a person may be released from the office of judge due to unsuitability for office only within three years after appointment to office if the judge has been declared unsuitable for office by a decision of the Supreme Court en banc. Once a year, president of a court submits his or her opinion concerning judges of less than three years length of service employed in the corresponding court to the Judge’s Examination Committee.

§ other? If yes, please specify.

The president of a court approves the draft budget of the court prepared by the director of court;
exercises supervisory control prescribed by law; prepares the draft of the training plan of judges and submits it for approval to the full court, organises and monitors compliance with the plan and presents a review on compliance with the plan to the full court at least once a year; performs other duties arising from law and the internal rules of the court.

Part II – General concerning Councils for the Judiciary

7. Is there a Council for the Judiciary in your judicial system?

Yes, there is.

8. What is the exact title/denomination of this body? (In the case there is no such body, which department or structure - for example the Ministry of Justice - is responsible for the tasks of the Council?)

Council for the Administration of Courts is the most important judges' self-government organ in Estonia with a wide competence. Additionally, specific tasks for judges' self-governance are performed by Judge’s and Assistant Judge’s Examination Committees, Judge's Training Committee and Disciplinary Chamber of the Supreme Court.

Additionally there exists the Estonian Judges' General Assembly (in Estonian Courts Act called as the Court en banc). Judges' General Assembly is comprised of all Estonian judges (currently, as of 1.01.2007 there are 249 judges in Estonia), is chaired by the Chief Justice of the Supreme Court and is convened every year on the second Friday of February. The procedure of the Estonian Judges' General Assembly is established by a majority of votes of the judges participating in the Assembly. The clerical support to the Judge's General Assembly is organised by the Supreme Court. Most of the tasks of the Judge's General Assembly are concerned with the election of judges to the judges' self-governing bodies. The Estonian Judge's general Assembly has also approved the Estonian Judge's Code of Ethics.

9. What is the legal basis for the Council for the Judiciary:

The establishment of the Council for the Administration of Courts was enabled by the Courts Act.

10. Please, give a brief historical overview (when was it created, what were the reasons for setting up the Council, etc.) (in the case there is no such body, why there is no such Council and why do the tasks lay within for example the Ministry of Justice?)

There have been discussions about the self-governance of courts of first instance and courts of appeal since Estonia regained its independence.

The former Status of Judges Act (entered into force 01.01.1992) and the Courts Act (entered into force 01.01.1993) left the question of administration of first and second instance courts open-ended. The Government of the Republic Act of 13.12.1995 placed the courts within the area of government of the Ministry of Justice. The Supreme Court, being a newly established constitutional institution and the institution for the constitutional review administered itself.
Vesting the task of judicial administration in the Ministry of Justice was probably based on the mistaken interpretation of Art 146 of the Constitution, which establishes that “the Courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws." The Ministry of Justice interpreted this to the effect that the independence of the courts should be guaranteed on the level of individual judges.

The initial version the Courts Act in 2002 stated concisely that “the Ministry of Justice shall administer the first and second instance courts”. The Ministry of Justice did not support the idea of administering the courts through a Council. The Ministry considered the constitutional basis for such a model to be questionable. Moreover, the ministry was of the opinion that substantial independence of the courts could be guaranteed through the material resources that the executive, as a rule, was better able to guarantee because it was more effectively represented in the budgetary process and this in turn could avoid overburdening the courts with technical issues. Involving the courts in the budgetary process as independent parties would render them participants in political negotiations.

The Supreme Court, on the other hand, has been of the opinion that Art 146 of the Constitution embraces both individual and institutional independence. The situation wherein the judicial power has very little say or none at all in the process of determining its material resources is unacceptable. The European countries were moving towards diminishing the influence of the executive and involvement of the legislator and the third sector in the resolution of the most essential issues of judicial administration.

In the course of parliamentary disputes the Council for the Administration of Courts, consisting mainly of judges, was introduced to the Act as a mechanism for diminishing the power of the Ministry of Justice. The new Courts Act entered into force on 29.07.2002, legally authorising the judges to establish a Council for the Administration of Courts.

Part III - Composition

11. What is the composition of the Council for the Judiciary:

§ Number of members?

11 members

§ Qualification of the members?

The Council for Administration of Courts is comprised of the Chief Justice of the Supreme Court, five judges elected by the Estonian Judges' General Assembly for three years, two members of the Riigikogu, a sworn advocate appointed by the Board of the Bar Association, the Chief Public Prosecutor and the Chancellor of Justice.

§ For the “judges” members, do they need specific qualifications or experiences?

No, but by the Statute of the Estonian Judges' General Assembly, two representatives of both courts of first instance and of appellate level are elected to the Council. The fifth judge-member of the Council is elected from the Supreme Court.

§ Can non-judges be members of the Council? Please specify (number, qualification/specific functions)

5 of the 11 members of the Council are non-judges. Their function is, on the one hand, to provide relevant information from the legislator and different practitioners in the field of justice to the Council, and on the other side, to present the Council's ideas and decisions to their home institutions.
In addition, the Minister of Justice or a representative appointed by him or her can participate in the Council with the right to speak.

12. Please describe the whole procedure of appointment:

§ Who designates the members (judges or other institutions or authorities – please specify)?

The Estonian Judges' General Assembly elects among itself 5 members (and 2 alternate members) to the Council for Administration of Courts. Two members are from the courts of first instance; two from the appellate courts and one from the Supreme Court.
The 2 members of the Parliament are nominated to the Council by the Board of the Riigikogu.
Other members (from the Bar Association, the Prosecutor's Office and the Chancellor of Justice) take part in the work of the Council ex officio themselves or through a representative appointed by them.

§ What is the appointment system (voting, individual candidates, designation, etc.)?

Any judge has a right to nominate the candidature of any judge, including himself or herself as a member of the Council for Administration of the Courts. The Judges' General Assembly elects 5 members among these candidates. Separate elections are held for each court level (2+2+1). The five judges receiving most votes at their respective court level become members of the Council. The next two who do not receive enough votes to become members of the Council, become alternate members of the Council.

13. How is appointed the President and/or Vice-President of the Council?

The Chief Justice of the Supreme Court is the ex officio President of the Council for Administration of Courts.

14. What is the term of office for a member of the Council?

3 years.

15. May a member be removed from office against his/her will and, if so, under what circumstances?

Theoretically, the Judges' General Assembly could recall a member, if a majority of judges are not satisfied with the work of their representative at the Council. However, such practice has not yet occurred.

Part IV - Resources

16. Where does the Council receive its financial resources?

The Council does not have an independent budget; technical service for the Council is provided by the Ministry of Justice.

17. Does the Council have its own staff?

No

18. If not, is the personnel provided by:
§ the Ministry of Justice?
§ the Supreme Court?
§ other institution? Please specify

Clerical support to the Council is organised by the Ministry of Justice.
Council sessions can be convened by the Chief Justice of the Supreme Court or by the Minister of Justice. The person who convenes a session shall also determine its agenda. In any case the Council is chaired by the Chief Justice of the Supreme Court.

19. What is the staff number?

There is a special Courts' Administration Division within the Courts' Department of the Ministry of Justice, where there are 13 employees.

20. What are the qualifications of the staff?

The Courts' Administration Division's director and 4 councillors are lawyers; there are 4 analysts, 1 project manager, 1 training specialist and 2 referents.

21. Must the staff be composed, albeit only in part, by judges?

No, but according to the Courts Act, a judge may be transferred to the service of the Ministry of Justice at his or her request and with the consent of the president of the court for up to three years. During service in the Ministry of Justice, the authority of the judge is suspended, but he or she retains the judge’s salary and other guarantees during service in the Ministry of Justice and may return to the same court to a vacant position.
Practically one or two judges are constantly serving in the Ministry of Justice according to this stipulation. Mostly they do analytical work there with the aim of improving procedural laws or some aspect of the courts' work.

22. What are the tasks of the staff of the Council:
§ preparing materials for the Council members? Yes
§ providing them with analysis and evaluation of the courts’ practice? Yes
§ other? Please specify.

Part V - Tasks

23. Please describe the different tasks of the Council for the Judiciary (in the case there is no such body, please specify which bodies are responsible for the below listed tasks – see also part VIII of this questionnaire):

§ in area of personnel policy (appointment and promotion of judges, appointment of the Presidents or the Administrative Directors of the courts, determining the number and location of judges or courthouses, transfer of judges, etc)?

The council grants approval to the Minister of Justice for the determination of the structure of courts, the determination of the number of judges in courts and judges in permanent service in a courthouse, the appointment to office and premature release of presidents of courts, the determination of the number of lay judges, the determination of the number of candidates for judicial office, the determination of additional remuneration for an (administrative, managing) director of courthouse.
It must be noted, though, that a transfer of a judge to another court of the same or a lower level is possible only with the consent of the judge.
The Council provides an opinion on the candidates for a vacant position of a justice of the Supreme Court, and on the release of a judge from office on certain conditions (1* due to health reasons which hinders work as a judge, 2* upon liquidation of the court or reduction of the number of judges, 3* if after leaving the service in the Supreme Court, the Ministry of Justice or an international court institution, a judge does not have the opportunity to return to his or her former position of judge, and he or she does not wish to be transferred to another court, 4* if a judge is appointed or elected to the position or office which is not in accordance with the restrictions on services of judges or 5* if facts become evident which, according to law, preclude the appointment of the person as a judge).
The Council can discuss other issues at the initiative of the Chief Justice of the Supreme Court or the Minister of Justice.

§ in area of initial and/or continuous training for judges and/or courts’ staff?

Initial training (or preparatory service) of a judge is determined by the Judge's Examination Committee who also holds the judge's examination.
Continuous training for judges and courts' staff (consultants) is organised by the Judge's Training Committee.
Both of these committees comprise 6 judges (2 from each court level), and representatives from the Ministry of Justice, the Prosecutor’s Office and the University of Tartu. The Judge's Examination Committee also includes a representative from the Bar Association.
The judge members to these committees are elected at the Judges' General Assembly respectively for 5 or 3 years.

§ in area of courts’ performance in general (assessment of quality of court performance, setting policy and performance standards and targets for courts, imposing penalties for the misuse of funds)?

The Council for Administration of Courts certainly monitors the general workload of the courts. It may make proposals to the Minister of Justice to change the structure or territorial jurisdiction of the courts, or the number of judges in courts and in courthouses. It must be pointed out, though, that a transfer of a judge to another court of the same or a lower level is possible only with the consent of the judge.
Additionally, if major problems were obviously caused by poor leadership of a court, the Council might propose to the Ministry of Justice to appoint a new president of a court to office.
In 2006 there was a court regions' reform and 16 county courts were united into 4, and 4 administrative courts were united into 2. Since that, the Council for Administration of Courts has a right to adopt additional principles for the preparing of the division of tasks plan of judges. When approving the division of tasks plan, courts shall be guided by the principles adopted by the Council for Administration of Courts.
The council also grants approval to the determination of the internal rules of courts, which prescribe the internal organisation of work of courts. In the end the internal rules are established by the president of the court with the approval of the full court (all the judges of the court).

§ in area of the individual work of a judge (evaluation of his/her work, setting up evaluation criteria as quality and/or quantity of judgements)?

Generally, the Council for Administration of Courts does not assess the quality of judges' personal performance, both because of not wanting to interfere with the independence of judges, but also because of the lack of the resources for making a thorough and competent analysis in this matter.
Nevertheless, the Council has asked the Ministry of Justice to work out objective criteria in order to analyse the quality and quantity of the work of every judge (the number and time-frames of judgements and decisions, their upholding or overruling by a court of higher level etc). Although the possible use of such analysis is not yet clear, probably the training of judges would benefit mostly of it. But theoretically one cannot exclude the possibility of launching a disciplinary procedure against a judge in extreme cases, on the grounds of constant and serious erroneous work results.

§ in area of disciplinary procedure against judge (has the Council power of initiative or sanction, is appeal or another legal remedy available against sanctions, when the Council has power in disciplinary matters does it respect the provisions of Article 6 of the ECHR)?

The Council for Administration of Courts itself does not have any disciplinary powers (neither a right to initiate proceedings nor to participate in the disciplinary proceedings) against a judge.

For the adjudication of judges’ disciplinary matters, there is a Disciplinary Chamber at the Supreme Court. It comprises 5 justices of the Supreme Court (nominated by the Supreme Court's plenary session (Supreme Court en banc)), 5 judges of the appellate courts and 5 judges of the first instance (nominated by the Judges' General Assembly), nominated for a period of three years.
A disciplinary offence is a wrongful act of a judge which consist in a failure to perform or inappropriate performance of official duties. An indecent act of a judge is also a disciplinary offence. Disciplinary proceedings are to be commenced if elements of a disciplinary offence become evident, by preparation of disciplinary charges. The persons who have the right to commence disciplinary proceedings are the Chief Justice of the Supreme Court and the Chancellor of Justice (see above answer to question number 2), against all judges; the president of an appellate court, against judges of courts of first instance in his territorial jurisdiction; all presidents of the courts, against the judges of the court (see above answer to question number 6), and the Plenary Assembly of the Supreme Court against the Chief Justice of the Supreme Court.
A five-member panel of the Disciplinary Chamber hears the disciplinary matter at a court session. A judge who is convicted of the commission of a disciplinary offence and on whom a disciplinary punishment is imposed may file an appeal to the Supreme Court en banc within 30 days after the pronouncement of the decision.
The sessions of the Disciplinary Chamber are not public, neither are the rulings published. Nevertheless, according to the Public Informa tion Act, the State institutions are required to grant access to the public information in their possession, obtained or created upon performance of public duties. Access to public information may only be restricted pursuant to the procedure provided by law. Pursuant to these provisions, the Chief Justice of the Supreme Court has declared that the preparatory documents of the disciplinary matters of the judges and these decisions of the Disciplinary Chamber which contain private or sensitive data to be only for internal use. Consequently, all other decisions of the Disciplinary Chamber (after entering into force) are accessible for anyone who takes interest in them.

§ in area of the budget for the judiciary (does the Council take part in the budget negotiations with the Government or Parliament, does the Council have competences for the subdivision of financial resources allocated to the courts, for the deployment of funds by individual courts, which courts)?

In the process of forming and dividing the budget of the courts of first two instances, the Council for Administration of Courts acts mainly as an organ of approval.
The annual budgets of the courts of first instance and courts of appeal are formed and amended by the Ministry of Justice, but the Council for Administration of Courts gives its preliminary opinion on the principles of the formation and amendment of these budgets. The budgets of the courts of first instance and courts of appeal are a part of the budget of the area of government of the Ministry of Justice and thereby negotiated and represented before the Government and Parliament by the Ministry of Justice. After the annual State Budget Act is passed, the Minister of Justice approves the budget of courts of lower instances, considering the opinion of the Council for Administration of Courts.
The Supreme Court is financially independent, i.e. it makes its individual proposal for the next year’s budget and represents it itself in the negotiations with the Government (who compiles the draft State Budget and submits it to the Parliament). The Supreme Court has its separate part in the State budget.

§ in other areas not already mentioned above (e.g. participation in the law-drafting process, reporting to the Government/Parliament about substantial problems in the court system)? Please specify

Amendments to the Courts Act have always been either initiated by or co-ordinated with the Council for Administration of Courts. The Council also deliberates, in advance, the review of the Chief Justice of the Supreme Court to be presented to the Riigikogu concerning courts administration, administration of justice and the uniform application of law.
The Council also discusses the trends and principles of development of the judicial system, approves the blank forms for simplifying the access to courts, approves the statutes and patterns of the courts’ information system, approves the guidelines for courts’ public relations, and determines the career models as well as salary system of courts’ staff. The Council for Administration of Courts has also adopted the Recommendations for the Courts’ Media Relations.

Besides the above mentioned the Estonian Judges General Assembly has adopted the Estonian Judges' Code of Ethics and hears reports by the Chief Justice of the Supreme Court and the Minister of Justice concerning the development of the legal and court system and also discuss problems of administration of justice and other issues concerning courts and the work of judges.

24. Does the Council have investigation powers? If yes, please specify

No.

25. How can the members of the Council have information on the concrete functioning of courts? (where do they receive information from, is the information analysed) Please describe

Information is systematically provided and analysed by the Ministry of Justice, who has the obligation to organise clerical support to the Council. Additionally, in special subjects, any member of the Council can forward useful information to the Council, since especially the "judge" members themselves present the inside view to a problem and reasons behind it regarding their own area of jurisdiction.

26. What are the types of norms that the Council can issue:

§ opinions on the functioning of the judiciary? Yes
§ recommendations? Yes
§ instructions to the courts? Yes
§ decisions? No

Besides that the Council can also give approvals. All the abovementioned decisions of the Council are decided by majority vote of the members present.

27. Are the functions or responsibilities of the Council described in law or other norms? Please specify.

The functions of the Council for Administration of Courts are described in the Courts Act. The Council approved its rules of procedure at the first session.

28. If yes, is the formulation of these tasks by legislation general, even declarative, or rather concrete and specific?

Most of the tasks of the Council are formulated quite concretely and specifically. At the same time the enumeration of tasks is left open with a declarative norm that "the Council discusses other issues at the initiative of the Chief Justice of the Supreme Court or the Minister of Justice".

29. Does your country have a code of ethics for judges and is it one of the tasks of the Council to guarantee its observance?

Yes, the Estonian Judges' Code of Ethics was adopted by the Judges' General Assembly in 2003 (see above answer to the question number 8). It is available in English at the web-page of the Supreme Court (see http://www.nc.ee/?id=682).
The Council for Administration of Courts as an institution has no direct obligation to guarantee the observance the Code of Ethics, although the members of the Council who are judges should of course respect these principles in their work in the Council, as well.

30. Does the Council handle external relationships of the courts:
§ has it a public relations department?
§ how does it ensure the transparency of its functioning and organisation?

The Council does not have a separate PR department or even employees, but if necessary the Council has used the press secretary of either the Supreme Court or the Ministry of Justice. The members of the Council interchange information between the Council, the courts and the Ministry of Justice, but also to the Parliament, the Prosecutor's Office, the Bar Association and the Chancellor of Justice.
The Council for Administration of Courts has also adopted the Recommendations for the Courts’ Media Relations.

31. Are decisions of the Council published and available to all?

The minutes of the Council meetings and most important documents of the Council are published in the web-site of the Ministry of Justice (in Estonian, see http://www.kohus.ee/19703). Some important documents (like Recommendations for the Courts in Exchanging Information with the Press) are also simultaneously available at the Supreme Court's web-site.

Part VI – Assessment of the self-governance and the independence of the judiciary

32. To what extent is the work of the Council influenced by:

§ the executive power?

The Ministry of Justice influences substantially the work of the Council, as it provides clerical support to the Council, determines the agenda and prepares materials for the sessions of the Council. Theoretically, the Minister of Justice also has a possibility to propose legislative amendments to the parliament concerning radical change in the formation or competence of the Council.

The Chief Public Prosecutor is a member of the Council.

§ the legislative power?

The two members of the Riigikogu taking part in the work of the Council can present the opinions of the Parliament in questions of the courts' administration to the deliberations of the Council. Of course, the Riigikogu has a legislative power of changing the formation or competence of the Council.

Additionally to the above mentioned the Chancellor of Justice as a member of the Council has also certain influence to the work of the Council.

33. Is the Council independent from other States entities, so that it is not subject to control liability in their respect?

Yes, the Council is independent from other State entities.

34. Which is the division of responsibilities and powers between the Council for the Judiciary and the Ministry of Justice?

The approval of the Council for Administration of Courts is obligatory for most of the important decisions which are within the competence of the Minister of Justice in the domain of administration of courts (see above answer to the question number 23). On the other hand the Council itself has very limited decisive power (see below answer to the question number 40).

35. Which is the division of responsibilities and powers between the Council for the Judiciary, the Supreme Court and the Presidents of the Courts?

The Council for Administration of Courts is chaired by the Chief Justice of the Supreme Court; he may also convene the sessions of the Council and determine its agenda. More than half of the members of the Council are judges (6 - including the Chief Justice - of 11). Additionally, a member of the Estonian Association of Judges may take part in the sessions of the Council with a right to speak. The presidents of the courts have no special role in the Council, but in practice 4 of the 6 judge-members are presidents of the courts. It is being discussed whether to grant also to all of the presidents of the courts the right to participate in the sessions of the Council with a right to speak.

36. Is the Supreme Court or are the highest courts also subject to the exercise of the powers of the Council for the Judiciary, or do special rules apply to that respect?

The Council provides an opinion on the candidates for a vacant position of a justice of the Supreme Court: the Supreme Court justices are appointed to office by the Riigikogu on the proposal of the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court considers first the opinion of the Supreme Court plenary session and the Council for Administration of Courts concerning a candidate.

The Supreme Court also has to respect the recommendations and approvals of the Council, concerning the structure, composition and budgeting of the courts of lower level. Some deliberations of the Council may have a more far-reaching influence on the Supreme Court as well (for example, the approved blank forms for simplifying the access to courts, statute of the courts’ information system, guidelines for courts’ public relations etc). The Supreme Court has to respect these decisions, too.
On the other hand, the Supreme Court also influences the Council since the Chief Justice of the Supreme Court is at the same time the President of the Council for Administration of Courts; he consequently presents the opinions of the Supreme Court at the Council. The same is also possible for the other member of the Council who is the Supreme Court justice.

37. Who decides which the priorities of actions of the Council are?

The main functions of the Council derive from the Courts Act but the agenda of the Council for Administration of Courts is determined either by the Chief Justice of the Supreme Court or by the Ministry of Justice. In practice, any member of the Council can raise a question before the Council, and if a majority of members support the deliberation of this question, it can be done at once or the Ministry of Justice has to prepare materials for it for the next session.

38. Is it possible for the individual courts or judges to appeal the decisions of the Council? How?

No such possibility has been enacted in law and in practice there has been no need for it, either.

39. Which instruments or practices are used by the Council:

§ to guard the independence of judges?
We cannot recall cases where the personal or decisional independence of judges has been infringed; therefore the Council has not had to act in protection of their independence.

§ to protect judges from undue interferences and/or attacks coming from the general public, the media and other powers of the State?
The Council has not taken steps in public to protect the judges against undue interests or attacks. The Council for Administration of Courts has however adopted the Recommendations for the Courts’ Media Relations which also deal in general with these kinds of issues.

In exceptional cases when there have been personal problems with judges, they have been resolved either in disciplinary or criminal proceedings and if needed, the President of the Court or the Chief Justice of the Supreme Court has commented on the situation.

§ to intervene in case of attacks against its own interests?
In 2003 autumn the Council for Administration of Courts wrote a letter to the Government of the Republic which stated that the expenses foreseen for the court staff in the draft budget of courts of first instance courts and courts of appeal were not sufficient.

§ to improve the working methods of judges?
The Council has proposed amendments to procedural laws, including proposals to introduce simplified procedural documents; it has approved the courts’ information system and has elaborated uniform document forms and made these available to citizens through Internet and the courts’ offices.

Part VII – Future trends of Councils for the Judiciary

40. Are there particular fundamental problems concerning the administrative management of the courts vis-à-vis the role of the Council? If yes, please describe.

The main problem is that the Council itself has little decisive power to make definitive statements about important matters regarding the courts' administration. Since a majority of the important decisions concerning the administration of courts of the lower instances are made by regulations of the Minister of Justice, the functions of the Council largely limit with approving or disapproving the proposals of the Ministry of Justice.

Secondly, since the Council has no supporting staff of its own, it is hard for it to take far-reaching initiatives in analysing the problems of administering the courts and the Council has to depend on the preparatory work of the Ministry of Justice.

The third problem concerns the budgeting of the courts of first instance and courts of appeal. The budget of the courts competes with other political priorities of the Minister of Justice e.g. with crime prevention and prisons, with probation and registers. This may hinder the adequate financing for the courts' estates and wages of the courts' staff.

41. Are reforms concerning the Council under discussion or envisaged in the near future? If yes, please describe.

Wide-ranging reform plans concerning the Council are under discussion in Estonia. In 2006, the Chief Justice of the Supreme Court together with a judge and ministerial officer elaborated a thorough critical analysis of the current system of the administration of courts. The document was discussed both in the Council for Administration of Courts and also in the Government of the Republic, as well as in all Estonian courts.

Based on this analysis, the Chief Justice of the Supreme Court and ten judges drew up the Principles of the Development of the Court System, which are open for comments of judges and are going to be discussed and submitted for approval at the Judges' General Assembly on 9th February 2007. Based on these principles a draft law will be prepared which should amend the problems described above in answer to the question number 40. Of course the enactment of the reform plans eventually depends on the legislator, therefore they have to be well reasoned and widely discussed to be accepted by a qualified majority of the Parliament.

According to the intended reform plans, the courts should become institutionally independent from the executive power. The Council for Administration of Courts would gain its own decisional power and become a strategic managerial body for all the courts (including the Supreme Court). The Council would have its own supporting staff. The competence of the Council would include for example the appointment of the presidents of the courts, approving the draft budget of the court system and afterwards dividing it between the courts.

42. Are there relations between the Council for the Judiciary and judges' professional organisations or associations?

Yes, there are. The relations between the Council and the Estonian Judges' Association are constructive. All the materials disseminated for the Council members before the session are also sent to a representative of the Association. A member of the Association may take part of the Council's session with a right to speak.

43. If your country is member of the European Network of Councils for the judiciary (ENCJ), what are the concrete added values of your membership:
§ concerning the national actions of your Council?
§ concerning international co-operation?

Estonia is an observer of ENCJ, represented by a delegate of the Ministry of Justice. We are not a member, because our Council does not have enough appropriate powers and capacity in the field of court administration (see above answer to the question number 40). As we are not members we cannot give examples of concrete added values of our membership. As observers the added values have so far included only obtaining new contacts in other European countries with whom to communicate if a need arises. We have also gained valuable knowledge from the Conferences and analytical studies run by the ENCJ. These experiences were also used in the analysis of the current system of the administration of courts and reform proposals (mentioned above in answer to the question number 41).

44. Are there some other features concerning the Council for the Judiciary which might be of special interest to others from a comparative point of view? If yes, please describe.

As a conclusion one might state, that Estonia is in a phase between the countries where the administration of courts is run by the Ministry of Justice and between the countries where there exists a strong Council for the Judiciary. We are about on half way. The Supreme Court is the only jurisdiction which is completely independent since it drafts its own budget which is not part of the budget of the area of government of the Ministry of Justice, although even the Supreme Court presents its draft budget to the Ministry of Finance and not directly to the parliament and then starts budgetary negotiations. The Council co-operates with the Ministry of Justice, but if the reform plans succeed, the Council will be independent and have much more decisive power in order to better guarantee the independence of judiciary also in the administrative, budgetary and management issues.

Part VIII – Countries without a Council of the Judiciary - not relevant for Estonia, since the Council exists

45. Are there mechanisms to ensure the functioning of the principle of separation of powers with respect to the judiciary?

46. How and by whom are judges appointed and promoted?

47. Does any authority (body) independent1 of the government and the administration take part in the appointment and promotion process:

§ If yes, how is this authority composed? Is a certain share of judges fixed?
§ How are the members selected?
§ what are the detailed competences of the authority with respect to the appointment and promotion of judges?

48. How are the courts’ activities funded? Do judges have any say whatsoever in decisions concerning funding or in managing the budget?

49. Is the creation of a Council of the Judiciary contemplated? If yes, what will be its competences?

1 One example is the Committees for the Selection of Judges in several German Länder (composed mainly of members of Parliament and judges) who may decline the Minister’s of Justice suggestion for the appointment or promotion of a candidate (veto right). Another example are the German Councils for Judicial Appointments which consist of the president of the court and of judges elected by their colleagues who deliver a written (not binding) opinion on a candidate’s personal and professional aptitude (as provided by Land law with respect to appointment and/or promotion).



 Top

 

  Related Documents
 
   Other documents