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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

Guarantees of Judicial Independence

Jaan Ginter
pp. 75-84

Independence of the judiciary is an important issue in every country, but it has exceptional importance in countries, which have recently had or are currently having problems with democratic control over their government. So it is not surprising that Judge Weinstein*1 after visiting Latvia some years ago received additional inducement for exploring the theme of judicial independence*2.

It is sometimes suggested that an independent judiciary is a common feature for all democracies. Different rationalisations have been suggested for the need of an independent judiciary in democracies. William Landes and Richard Posner suggest that politicians in democracies need independent courts to make long-term bargains with their constituents (i.e. without independent courts, politicians would have an incentive to cheat on any deals their predecessors made and knowing the short life of any deals, their constituents would pay less for any advantageous statutes ex ante)*3. René Foqué supports a slightly different view, declaring that without an independent judiciary political power can no longer be legitimized in the eyes of responsible and mature citizens.*4 The rationalisation offered by Mathews D. McCubbins and Thomas Schwartz is quite different. They assert that politicians need independent judges to monitor the people they appoint to bureaucratic posts (i.e. politicians keep bureaucrats in line by giving constituents a right to sue them in independent courts).*5

But as comparative research shows, an independent judiciary is not uniformly common to all democracies. J. Mark Ramseyer has suggested an interesting solution to the question of why rational politicians in some democracies offer independent courts, while in other democracies they do not. He suggests that the answer is close to the Prisoner’s Dilemma and that whether rational politicians maintain independent courts depends on two things: 1) whether they expect elections to continue indefinitely, and 2) if elections will continue, whether they expect to continue to win them indefinitely. Only if the politicians rate the likelihood of continued electoral government high and the likelihood of their continued victory low might they provide independent courts.*6

2. List of Guarantees

In analysing the guarantees for independence of the judiciary it should be kept in mind that independence of the judiciary includes three separate aspects:

1) independence of individual judges;

2) independence of individual courts; and

3) independence of the court system.*7

All three aspects of independence of the judiciary may be guaranteed by different means and techniques. The means and techniques for guaranteeing one specific aspect may sometimes have a negative impact on some other aspect of independence of the judiciary.*8

The Estonian Constitution*9 deals also with only the first and third aspects. According to the § 147 of the Constitution “the legal status of judges and guarantees for their independence shall be provided by law“.*1010 Further, according to the § 146, ”the courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws".

The Constitution does not give a full list of guarantees. Section 147 names only some of them:

1) “judges shall be appointed for life”;

2) “the grounds and procedure for the release of judges from office shall be provided by law”;

3) “judges may be removed from office only by a court judgement”; and

4) “judges shall not hold any other elected or appointed office, except in the cases prescribed by law”.

Section 150 adds about the appointment of judges that “the Chief Justice of the Supreme Court shall be appointed to office by the Riigikogu,*11 on the proposal of the President of the Republic. Justices of the Supreme Court shall be appointed to office by the Riigikogu, on the proposal of the Chief Justice of the Supreme Court. Other judges shall be appointed to office by the President of the Republic, on the proposal of the Supreme Court”.

Section 153 provides that “criminal charges may be brought against a judge during his or her term of office 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,*12 and with the consent of the majority of the membership of the Riigikogu”.

The Legal Status of Judges Act *13 of 1991 gives a more detailed list of guarantees for the independence of judges. Subsection 17 (2) provides that the independence of judges is guaranteed by:

1) the procedure for appointing judges to office;

2) the procedure for release of judges from office;

3) the procedure for removal of judges from office;

4) the procedure for bringing criminal charges against judges;

5) judicial procedure;

6) secrecy of the deliberation of judges and lay assessors;

7) liability for contempt of court or interference with court decisionmaking;

8) securing organizational and technical conditions for the activities of courts;

9) financial security of judges; and

10) social security of judges.

This list cannot be viewed as exhaustive in any way. Missing for example are guarantees regarding procedures for transferring judges from office to office, and for bringing disciplinary action against them. These guarantees are mentioned in other sections of the statute.

The Courts Act*14 of 1991 is silent on the point of the list of guarantees for the independence of courts.

Different countries employ different procedures and techniques to guarantee judicial independence. Minimum standards of judicial independence have been formulated in the International Bar Association Standards of Judicial Independence (further cited as the IBA Standards),*15 in the Universal Declaration on the Independence of Justice adopted at the First World Conference on the Independence of Justice held at Montreal (further cited as the Montreal Declaration)*16 and in the Basic Principles on the Independence of the Judiciary adopted at the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders in Milan (further cited as U.N. Basic Principles).*17

The following sections are devoted to an analysis of the guarantees concerning which there may be doubt as to whether they are offered in Estonia to the fullest extent.

2. Selection and Retention of the Judges

All international standards on independence of the judiciary include some reference to the system of selection and retention of judges. The most lenient standards are in the U.N. Basic Principles, which require only that:

any method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory.*18

The Montreal Declaration suggests that: participation in judicial appointments by the Executive or Legislature is consistent with judicial independence, so long as appointments of judges are made in consultation with members of the judiciary and the legal profession, or by a body in which members of the judiciary and the legal profession participate.*19

The most restrictive are the IBA Standards which declare that: (a) participation in judicial appointments and promotions by the Executive or Legislature is not inconsistent with judicial independence, provided that appointments and promotions of judges are vested in a judicial body, in which members of judiciary and the legal profession form a majority. (b) Appointments and promotions by a non-judicial body will not be considered inconsistent with judicial independence in countries where, by long historic and democratic tradition, judicial appointments and promotion operate satisfactorily.*20

Different countries utilize different systems for judicial appointments. Only a small number of countries entrust the power of judicial appointments to the judiciary (generally, a collegial body (judicial council) performs the function).*21 With some exceptions, most countries give this function to the executive which carries it out by either a uniform method for all judges or according to a split-system, whereby the system for appointments in the higher courts differs from that in the lower courts.*22 A particular exception occurs in some states of the United States which use partisan or non-partisan general elections for the selection of judges. There has been a substantial amount of research conducted on the topic of different methods of selection and retention of judges.*23 The major factor for preferring one method over another has been the intention to achieve different balances between independence of the judiciary and their accountability.

Generally, empirical work conducted on the subject, indicates that the method of selection has little, if any, effect on the overall quality of judges.*24 For example, a study by David A. Bowers and Jerold L. Waltman examined the influence of judicial selection methods on the differences of public opinion and judges’ opinions. They found that there is a significant correlation between the length of sentences for felonies and whether the people of the jurisdiction supported more liberal or more conservative political views; the more conservative the population the longer the sentences. They went on to investigate whether the correlation is closer in the jurisdictions in which judges are elected and discovered that the judicial selection method has no significant effect on the degree to which public preferences determine sentences.*25

In Estonia, different systems for the selection of judges have been used. During the first years of independence from 1918 to 1920, judges were appointed by the executive. From 1920 to 1933 judges of the highest court (Riigikohus) were elected by the legislature and all other judges were appointed by the Riigikohus. From 1933 to the Soviet occupation judges were appointed by the President. During the Soviet occupation judges were officially elected by general election every five years, but in reality they were selected by the Communist Party officials.

According to the Courts Act of 1991, the Chief Justice of the Supreme Court (Riigikohus) is appointed by the legislature (Riigikogu) on the proposal of the President of the Republic, justices of the Riigikohus are appointed by the Riigikogu on the proposal of the Chief Justice of the Riigikohus, and other judges are appointed by the President on the proposal of the Riigikohus. *26

There is no doubt that the Estonian method for the selection of judges is in accord with the lenient U.N. Basic Principles. There is some difficulty in reconciling the Estonian methods with the Montreal Declaration because the Chief Justice of the Riigikohus is appointed by the legislature without any consultation with the judiciary and all appointments are made without consultation with the legal profession.

These discrepancies may be explained by the fact that there were no judges appointed by an independent Estonia who could be consulted with and that the legal profession was too small in number. Still, some questions remain because now such a judiciary is present and could be consulted. Also the legal profession is growing.

Much more difficult is to reconcile Estonian methods of judicial selection with the IBA Standards which require judicial appointments by a judicial body and allow appointments by a non-judicial body only in the case of a long historic and democratic tradition. It is difficult to assert that the few years from 1933 to the Soviet occupation were enough to develop a long historic tradition, but the standard 3. (a) of the IBA Standards seems altogether not to be solidly founded.

As mentioned earlier, only a small minority of states employ the judicial selection method of the IBA Standards. Some states, which employed the method in 1982 (when the IBA Standards were adopted), have discarded the method later (e. g. Finland in 1993). Also, there are reasons to believe that the method suggested by the standard may have some serious imperfections.

No one can doubt that the appointment of judges by a judicial body increases the independence of the judiciary. The question is, whether there is a level of independence, in excess of which, the extra independence of the judiciary will cause harm. If the appointment of judges would be an exclusive function of the judiciary, the judiciary will become more and more detached from the rest of society and the opinions of the judiciary may start to differ substantially from the opinions of the rest of the society. More likely than not, the differences would be in favour of the judiciary, but the society is able to cope only with a certain level of such differences. If the difference becomes greater than the society is able to cope with, the society will move to suppress the difference and in this case, the pendulum will most likely move to the other extreme and the independence of the judiciary may be significantly trespassed.

Another issue concerning appointment is the period of tenure. The independence of the judiciary is most highly guaranteed by appointing judges for life. Life tenure may be given two different interpretations. Either literally, in that a judge is appointed for life or that the appointment is until they reach a certain age. Currently most countries accord their judges life tenure in the latter interpretation. In some states judges are selected for a term of years.

There has been substantial criticism of the selection of judges for a term of years. For example, Shimon Shetreet argues that this method does not accord security of tenure, as it opens the possibility of renewing the appointment of a “desirable” judge while letting that of an “undesirable” judge to lapse, without renewal.*27 Among the international standards dealing with this issue, the IBA Standards are the most stringent requiring that “judicial appointments should generally be for life, subject to removal and compulsory retirement, at an age fixed by law at the date of appointment”.*28 Here the same problem of balancing independence and accountability is encountered.*29

In Estonia, judges are appointed for life, subject to compulsory retirement within five years after reaching the general retirement age.*30 A problem is that the general retirement age has been increased after the appointment of new judges. The Montreal Declaration insists that “retirement age shall not be altered for judges in office without their consent”.*31 According to the word of the Montreal Declaration, increasing the retirement age would also only be possible with the consent of judges. But this solution would create unjustified inequality between judges and other employees. There is almost no doubt that the intent of the mentioned clause is to guarantee judges’ independence through increasing the security of their tenure. Increasing the retirement age however does not impair the security of judges’ tenure. Hence, the clause should not be read differently from the IBA Standards which insist that “retirement age shall not be reduced for existing judges”.*32

So, it could be concluded that increasing the retirement age should not be prohibited. But this does not solve all problems because the general retirement age is not the same for all ages. In Estonia, women who were born in 1941 will generally retire when they reach 57 years of age and those who were born in 1947 or later will generally retire when they reach 60 (the different retirement ages were established to smooth the transition from retirement at 55 (men at 60) to 60 (men at 65)).*33 So the question arises, whether judges who were born earlier should retire at a younger age than judges born later. There is no rational explanation why the earlier born judges should retire at a younger age than the later born judges. But as the difference in the retirement ages of different judges is only an incidental result of the interaction of two statutes and does not have any influence on the security of tenure, it may be concluded that the above-mentioned question should be answered in the affirmative, although it is peculiar that judges appointed at the same time and having the same position have different ages of mandatory retirement.

3. Judicial Release, Removal*34
and Discipline.

Judicial independence may be substantially impaired by improper grounds or procedure for judicial release, removal and discipline. International standards for judicial independence call for the grounds for judicial removal to be limited to “incapacity or behaviour that renders judges unfit to discharge their duties”*35 and do not mention the release of judges.

The Legal Status of Judges Act of 1991 provides three grounds for disciplinary action (all of which may result in judicial removal):

1) breach of court rules;

2) other misbehaviour in office; and

3) misbehaviour tainting the authority of the justice system.*36

There is no doubt that all these grounds may in some cases “render a judge unfit to discharge his or her duties”. However a problem is that the Legal Status of Judges Act of 1991 also provides grounds for the release of judges which include:

1) resignation;

2) medical condition rendering a judge unfit to discharge his or her duties;

3) reaching the mandatory retirement age;

4) unfitness for office (during the first three years after appointment);

5) reorganisation of courts or decrease in the number of judges; and

6) emergence of facts which cause impossibility of further performance of the functions of a judge*37 (conviction for intentional crime, becoming a member of the legislature or local government, becoming a member of political parties, becoming a founding member or member of the board of business enterprises).

The first, second, third and sixth grounds do not generate major concerns. But the fourth and fifth grounds do. The opportunity for release on the ground of unfitness for office (during the first three years after appointment) substantially impairs the security of tenure (and through it independence of the judiciary) opening up the possibility for release of “undesirable” judges. The international standards and major democratic legal systems do not recognize release on such grounds. The status of Estonian judges during their first three years of tenure is similar to that of judges on probationary appointment.

Although probationary appointments have been heavily criticized and it has been asserted that “an appointment for a probationary period is inconsistent with the independence necessary to judicial function”,*38 the Montreal Declaration tolerates it “for judges after their initial appointment, in countries which have a career judiciary”.*39 It is debatable whether Estonia can be considered to have a career judiciary. But even if it is agreed that Estonia has a career judiciary, Estonian judges who may at any point during the first three years of their career be released are substantially more vulnerable than judges with a probationary period. Hence, it should not be taken for granted that the tolerance of the international standards extends to this situation.

Similar concerns arise about the fifth ground. In many countries, the judiciary have vigorously fought against a government’s right to release judges on the ground that there are too many judges. A solution has been that a government may terminate a judicial office, but in so doing it must provide judges with the same remuneration as they had before the termination. As Estonian statute does not refer to such guarantees for remuneration, it may be concluded that the referred to provision is not in full accord with the need for an independent judiciary.

Some concern also arises from the fact that the power to release judges, on all the grounds analyzed above, is vested in the President of the Republic.*40 The most troublesome of these is release on the ground of unfitness for office (during the first three years after appointment) by the President. This ground of release is essentially removal (in the sense of the term as applied in the international standards) and therefore should be the prerogative of the judiciary or the legislature.*41

So far, the President has never exercised the right to release judges on the ground of unfitness. It has been argued that the Legal Status of Judges Act is unconstitutional in this aspect (according to The Constitution of the Republic of Estonia, § 147 “judges shall be appointed for life”). But as the same section of the Constitution also declares that “the grounds and procedure for the release of judges from office shall be provided by law”, it is not easy to argue that the Constitution does not allow for release on that ground. However, § 146 of the Constitution, which declares that “the courts shall be independent in their activities”, seems also to be in some contradiction with the President’s power to release on the ground of unfitness. It may be argued that courts cannot be independent if some judges may be released by the President on the ground of unfitness.

Another conflict between the Legal Status of Judges Act and the international standards concerns a judge’s right of appeal of the decision of a disciplinary tribunal.*42 This principle may not apply to decisions of the highest court and to those of the legislature in impeachment or similar proceedings,*43 but in Estonia disciplinary proceedings are held before the Disciplinary Commission, which is composed of three judges from the Riigikohus, three judges from intermediate appellate courts and three judges from trial courts. Hence, the Disciplinary Commission cannot be considered to be an equivalent to the highest court. As well, in Estonia, the right of appeal is not granted to judges.

It may be argued that this lack of a right of appeal does not affect judicial independence because disciplinary proceedings are held before a tribunal composed solely of judges and justices. But if internal judicial independence is also desired, then the need for an independent review of disciplinary proceedings cannot be denied.

4. Transfer

It is generally accepted that in certain cases transfer is tantamount to removal and that the power to transfer judges without their consent is inconsistent with judicial independence.*44 For example in India, due to language barriers and major differences between the various regions, transfer may amount to de facto removal.*45 Hence, judges should not be transferred from one jurisdiction or function to another without their consent. This requirement is included in both the IBA Standards*46 and in the Montreal Declaration.*47 The IBA Standards have somewhat more lenient wording which indicates that a judge’s consent for transfer is preferred. But the Montreal Declaration, although generally denying any transfer without a judge’s consent, accepts systems of regular rotation and specifically mentions systems, “where a judge in his early years is transferred from post to post to enrich his judicial experience”.

Judicial independence however may be substantially impaired even through a system of transfer which requires judge’s consent. A remarkable example of such a system is in Japan.*48 To exclude this opportunity, the above-mentioned IBA Standard requires that the power to transfer a judge from one court to another be vested in judicial authority.*49

The Legal Status of the Judges Act with respect to transfer is currently in full accord with the international standards. In Estonia, a judge may be transferred to another court of the same level by the Riigikohus only with a judge’s consent. But there are indications that the situation may at some point be changed drastically. According to the new draft Courts Act, prepared by the Ministry of Justice, the power to transfer will be vested not in the judiciary but in the executive, and more precisely, in the Minister of Justice. As well, in the text there is no indication about the judge’s consent. Hopefully, it was only a silly mistake of some junior drafter. There are grounds to believe that this was the case because after the clause was heavily criticized by the judiciary and liberal academics, the Ministry of Justice has not insisted on this change to the system for transferring judges.

Another aspect that should also be discussed in this context is the use of “spare” judges. The Legal Status of the Judges Act allows for the appointment of judges who have no permanent jurisdiction and who may be transferred from post to post by the Minister of Justice without the judge’s consent.*50 The security of tenure of these judges is substantially lower than that of regular judges. The international standards do not mention “spare” judges. However, for similar functions, fulfilling temporary vacancies, and for tackling temporarily increased caseloads etc., some other countries use part-time and temporary judges.

The Montreal Declaration condemns the use of temporary judges as inconsistent with judicial independence*51 but does not mention part-time judges. The IBA Standards are more lenient on this point, but nevertheless declare that “temporary judges should be avoided as far as possible except where there exists a long historic democratic tradition”.*52 Estonia has not had a long tradition of “spare” judges. Hence, to the IBA Standards cannot be referenced to approve the use of “spare” judges. So far, there have been no “spare” judges appointed. It would be wise not to start a new tradition of using “spare” judges and to eliminate the system of “spare” judges from the new draft Courts Act altogether. There are other alternatives available to cope with temporary vacancies and temporarily increased caseloads. A temporary transfer could be operated in such a manner that it would be possible to get the judge’s consent for transfer.

5. Posting and Promotion

Posting within the court system and promotion are also devices through which judicial independence may be severely impaired. The Montreal Declaration requires that “the assignment of a judge, to a post within the court to which he is appointed is an internal administrative function to be carried out by the judiciary”.*53 Unless assignments are made by the court, there is a danger of erosion of judicial independence by outside interference. This requirement is vital not only for independence of the judiciary vis a vis the executive, but also for the independence of individual courts. As asserted in the explanatory note to the mentioned section, it is “not intended to exclude the practice in some countries of requiring that assignments be approved by a Superior Council of the judiciary or similar body”. It does mean however that the assignments should be done before approval by the court.

In Estonia, the chief judge of the county and city courts and of the administrative courts are appointed by the Minister of Justice in concordance with the Riigikohus. The chief judges of the circuit (appellate) courts are appointed by the Riigikogu on the proposal of the Minister of Justice, and in concordance with the Riigikohus. The Chief Justice of the Riigikohus is appointed by the Riigikogu on the proposal of the President of the Republic.*54

None of the above-mentioned appointments are made by the judiciary. The most troublesome is the appointment of chief judges of the administrative courts by the Minister of Justice. These are the courts which are to protect against an overreaching executive. But if these courts are dependent on the executive, it will be almost impossible for them to fulfil this function. To be fair, it should be noted that the Minister of Justice cannot appoint the chief judges on his or her own, but must do so in concordance with the Riigikohus. This condition substantially helps to protect the independence of the courts. Nevertheless, it is difficult to justify the appointments being made by the Minister of Justice.

In providing the Minister of Justice with the authority to appoint chief judges of the trial courts, one has to assume that the Minister is responsible for the internal functioning of the courts. It is quite impossible however to reconcile this assumption with the separation of powers doctrine. The internal functioning of the courts should be the exclusive responsibility of the judiciary.

This situation causes even more concern because in the draft Courts Act the prerogative of the Minister of Justice is even wider. According to the draft, the chief judges of the circuit courts will also be appointed by the Minister of Justice and there is no indication that such appointments must be in concordance with the Riigikohus. If it is considered that the draft also requires that chief judges be reappointed every five years, it becomes evident that the draft substantially increases the powers of the Minister of Justice to control the internal functioning of the courts.

Other postings within the courts in Estonia are carried out by the judiciary. The division of judges within the circuit courts and of the justices of the Riigikohus into chambers and the appointment of chairpersons of the chambers is a prerogative of the Riigikohus, sitting en banc.*55 Of course, it could be argued that to guarantee the independence of individual courts within the court system, the appointments within the circuit courts should be made by the circuit courts themselves. However, considering the small number of judges in certain circuit courts and the small number of circuit courts,*56 the current situation may be considered close to optimal.

The system of promotion of judges is of no less importance in guaranteeing judicial independence. The Montreal Declaration requires that “promotion of a judge shall be based on an objective assessment of the candidate’s integrity and independence of judgement, professional competence, experience, humanity and commitment to uphold the rule of law”.*57

In the Courts Act and the Legal Status of Judges Act there is no indication about a system of promotion. Appointment to a higher court is regulated in the same manner as appointments to the lower courts. There is also no difference between the system for initial appointments and for further appointments.

Some concerns arise about temporary appointments at a court of higher instance. The Civil Procedure Code empowers the chief judge of a circuit court and the chairperson of the civil chamber of a circuit court to appoint judges of the county and city courts to sit a case in panel with two circuit court judges.*58 This practice is objectionable because “a judge holding temporary appointment to the court is susceptible to being influenced by external matters and pressures, and his independent judgement is liable to be affected”.*59 This procedure is also particularly questionable when it is considered that the procedure allows for the substitution of a higher court judge in a given case (as opposed to for a given period of time). It has been alleged that a chief judge or chairperson substituting a higher court judge in a given case “may select the judge as to effect the outcome of the case pending before the court”.*60

No doubt efficiency considerations call for an arrangement which allows for a substitute judge to replace a judge of an appellate court who is absent for health reasons or on vacation. But these substitutions should be made in a way which least impairs the integrity of the judiciary. So long as it is impossible to cope with the temporary backlog without substitute judges, they should be appointed not for a certain case but for a certain period of time.

6. Remuneration

It is unthinkable that judges can be independent without adequate remuneration. It is impossible for the amount of remuneration to be higher (and even not that high) than the amount that some parties to a legal dispute pending before a court would be prone to contribute (if accepted) to influence the outcome. But it must be high enough to secure for judges a standard of living that would not prevent professionally competent and experienced lawyers of integrity and independence of judgement from applying for judges’ positions.

As well, there should be no opportunity to manipulate the opinions of the judiciary through reducing or increasing the remuneration. The international standards call for securing remuneration by law.*61 In Estonia, judges’ remuneration is tied to the salary of the Prime Minister*62 and the latter is also fixed by law. The only concern is that the salaries of justices and judges are fixed as a range between two percentages*63 with the specific amount being decided by the chief judge of the court (the Chief Justice in the Supreme Court).

The differentiation of judges’ salaries may be justified by the need for motivating judges engaged in training, and for excellent performance etc. Nevertheless, it should not be forgotten that judges should also be independent from their fellow judges. There are different devices used to guarantee internal judicial independence. For example, according to the Civil Procedure Code in trial courts, lay judges must announce their opinion in the room for deliberation before a judge reveals his or her opinion. In the circuit courts and in the Riigikohus, the reporter must first announce his or her opinion before the other judges or justices do in the order of seniority in office (i.e. junior judges or justices first), and the chief judge or justice must announce his or her opinion last.*64 Thus in Estonia, internal judicial independence is also valued and to some extent guaranteed. Therefore, it must be determined whether the beneficial effects of the differentiation of salaries counterbalance their detrimental effect on internal judicial independence. The answer seems to be that the detrimental effect is greater, especially when it is considered that the chief judges of trial courts are appointed by the executive.

7. Court Rules

The functioning of courts depends (at least to some extent) on rules of procedure and court rules. The IBA Standards call for rules of procedure and practice, “made by legislation or by the Judiciary in co-operation with legal profession, subject to parliamentary approval”.*65 In Estonia, court procedures are settled in the codes of civil, criminal and administrative procedure. The codes are adopted by the legislature. So, it can be concluded that there is no conflict with the standard mentioned above.

However, besides the codes, there are the County and City Court Rules, Circuit Court Rules and Supreme Court Rules. The rules regulate internal procedures in the courts like document processing, and the functions of support staff etc. According to the Courts Act, the County and City Court Rules and Circuit Court Rules are approved by the Minister of Justice. Only the Supreme Court Rules are exclusively under the control of the judiciary, in that, the rules are approved by the Supreme Court.*66

It is difficult to find arguments why the County and City Court Rules and Circuit Court Rules should be approved by the Minister of Justice. Certainly the present procedure of approving the rules empowers the Minister of Justice. But the positive effect of this procedure is not clear at all. On the other hand, the procedure has a clear detrimental effect on judicial independence. Therefore, the new Courts Act should leave all court rules in the province of the judiciary.

8. Court Administration

There are different models for court administration. It is sometimes argued that there is a dividing line between common and civil law countries, in that, the judiciary is primarily responsible for court administration in common law countries, while in civil law countries this is a responsibility of the executive. Actually the dividing line is not at all as straightforward. For example in Italy and Portugal, which cannot be classified as common law countries, court administration is the responsibility of the judiciary.*67

Much more sophisticated is the classification offered by Shimon Shetreet. He differentiates five different models:

1) exclusive judicial responsibility,

a) individual model, vesting the responsibility in one individual judge, and

b) collective model, vesting the responsibility in a collegial judicial body;

2) exclusive executive responsibility;

3) shared executive-judicial responsibility,

a) hierarchical division of responsibility (the administration of the higher court is the responsibility of the judiciary and the executive has the responsibility for administration of lower courts), and

b) subject-matter division of responsibility (certain matters are decided by the judiciary and the others by the executive);

4) multi-branch responsibility (a collegial body representing all three branches of government and possibly other organs has the responsibility); and

5) separate independent organ of the state has the responsibility.*68

In Estonia, the third model of shared executive-judicial responsibility for court administration with a hierarchical division of responsibility is currently in use. The Supreme Court is responsible for administration of the Supreme Court, and the Ministry of Justice is responsible for administration of the county and city courts, administrative courts and circuit courts.

Although the Montreal Declaration calls for placing “the main responsibility for court administration”*69 in the hands of the judiciary and the IBA Standards request that “the central responsibility for judicial administration shall preferably be vested in the Judiciary or jointly in the Judiciary and the Executive”,*70 it cannot be asserted that vesting the responsibility for court administration in the executive is necessarily inconsistent with judicial independence.

This situation would become more strained if the draft Courts Act would be adopted without major changes. The draft introduces the second model mentioned above of exclusive executive responsibility for court administration. This model is also not necessarily incompatible with judicial independence (it is employed for example in Austria and Norway*71), but in Estonia, an extra problem occurs due to the Supreme Court being not only the court of last resort in civil, criminal and administrative cases, but it also performs a constitutional review function. Constitutional courts should have more guarantees for their independence and it is severely questionable whether the administration of constitutional courts by the executive is compatible with the integrity of constitutional courts.

Another argument against the proposed changes in court administration suggested by the draft Courts Act, is that the international standards are much more lenient in respect of procedures having a long democratic tradition, but the same procedures without such traditions are considered to be suspicious.*72 If there was a long tradition of exclusive executive control over court administration in Estonia, it would not be necessarily irreconcilable with independence of the judiciary. But to introduce such procedures, there must be extremely important reasons to do so. So far the authors of the draft have not demonstrated why the changes are unavoidable.

9. Conclusion

It may be concluded that the independence of the judiciary in contemporary Estonia is much more secure than during the Soviet occupation. Nevertheless, there are certain changes that could be introduced in the new draft Courts Act to guarantee that the other powers will never have an opportunity to entertain any restrictions, improper influence, inducements, pressures, threats or interference with respect to the judiciary when deciding matters before them impartially, on the basis of facts and in accordance with the law. These changes include:

1) more involvement of the legal profession in the appointment of judges;

2) consultation with the judiciary on the appointment of the Chief Justice of the Supreme Court;

3) abolishment of the release of judges on the grounds of unfitness for office (during the first three years after appointment);

4) abolishment of the appointment of “spare” judges;

5) making decisions of the Disciplinary Commission subject to review by the Supreme Court;

6) vesting authority to appoint chief judges of the trial and circuit courts also in the judiciary;

7) so long as it is impossible to cope without appointing trial court judges to serve in circuit court panels, appointment of trial court judges not for a certain case but for a certain period of time;

8) approval of court rules by the judiciary;

9) making administration of courts more the responsibility of the judiciary; and

10) no alteration to the current administration of the Supreme Court.

Notes:

1 Senior Judge, United States District Court, Eastern District of New York.

2 Jack B. Weinstein, Essay: Limits on Judges’ Learning, Speaking, and Acting: Part II Speaking and Part III Acting, Dayton Law Review, Fall, 1994, vol. 20, p. 2.

3 William M. Landes, Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, Law & Economics, 1975, vol. 18, p. 875.

4 René Foqué, The Independence of the Judiciary and the Administration of Criminal Justice, European Journal of Crime, Criminal Law and Criminal Justice, 1993 vol. 1, issue 4, p. 348.

5 Mathews D. McCubbins, Thomas Schwartz, Congressional Oversight Overlooked: Police Patrols versus Fire Alarms, American Journal of Political Science, 1984, vol. 28, p. 165.

6 J. Mark Ramseyer, The Puzzling (In)dependence of Courts: A Comparative Approach, The Journal of Legal Studies, June 1994, vol. 23, p. 722.

7 Usually only two separate issues are discussed a) independence of individual judges and b) independence of courts (meaning the court system), see For example Robert Stevens, The Independence of the Judiciary, Oxford: Calendron Press, 1993, p. 183; Shimon Shetreet, Judicial Independence: New Conceptual Dimensions and Contemporary Challenges, in Judicial Independence, S. Shetreet, J. Deschênes (eds.), Martinus Nijhoff Publishers, Dodrecht/Boston/Lancaster, 1985, p. 590.

8 For example, independence of individual judges also includes independence of individual judges from their colleagues but this independence may be undermined by a system of appointment of judges which utilizes judges as advisors or decisionmakers. On the other hand, a system of appointment of judges utilizing judges as advisors or decisionmakers is one technique for guaranteeing independence of the court system.

9 Riigi Teataja 1992, 26, 349; the English version of the text is published in: Estonian Legislation in Translation, Legal Acts of Estonia, No. 1, January 1996.

10 In the text of the Constitution ”law" means act of parliament.

11 The Riigikogu is the Estonian parliament.

12 In Estonia, the Legal Chancellor is an independent official appointed to office by the Riigikogu, on the proposal of the President of the Republic, whose main function is to review the legislation of the legislative and executive powers and of local governments for conformity with the Constitution and the laws. The Legal Chancellor does not represent legislative, executive or judicial power.

13 Riigi Teataja 1991, 38, 473.

14 Riigi Teataja 1991, 38, 472.

15 International Bar Association Standards of Judicial Independence, in Judicial Independence, S. Shetreet, J. Deschênes (eds.), Martinus Nijhoff Publishers, Dodrecht/Boston/Lancaster, 1985, p. 388.

16 Universal Declaration on the Independence of Justice, in Judicial Independence, S. Shetreet, J. Deschênes (eds.), Martinus Nijhoff Publishers, Dodrecht/Boston/Lancaster, 1985, p. 447.

17 Basic Principles on the Independence of the Judiciary, Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Milan, 26. August to 6. September 1985, U.N. Doc. A/CONF.121/22/Rev.1, 1985, p. 59.

18 The U.N. Basic Principles, Principle no. 3.

19 The Montreal Declaration, 2.14. b)

20 The IBA Standards, 3. (a), (b).

21 Italy (consiglio superiore della magistratura); Portugal (Higher Council of Magistrates); Spain (General Council of Judicial Power); Finland (up to 1993 Supreme Court appointed district and municipal court judges), see Shimon Shetreet, op. cit. p. 624.

22 See Shimon Shetreet, op. cit. p. 624.

23 See For example Peter D, Webster, Selection and Retention of Judges: Is there One “Best” Method?, Florida State University Law Review, 1995, Issue no. 231, p. 1 - 42; Jona Goldsmith, Selection and Retention of Judges: Is Florida’s Present System Still the Best Compromise?: Merit Selection: Current Status, Procedures, and Issues, in University of Miami Law Review, Fall, 1994, vol. 49, p. 1 - 79; Deborah Hardin Wagner, Selection and Retention of Judges: Is Florida’s Present System Still the Best Compromise?: Ensuring Diverse Bench: Is Florida Up to the Task?, in University of Miami Law Review, Fall, 1994, vol. 49, p. 147 - 153.

24 See generally Commission on Government Integrity, State of New York, Becoming a Judge: Report on the Failings of Judicial Elections in New York State, 1988, p. 7; Anthony Champagne, The Selection and Retention of Judges in Texas, Sw. L. J. (Special issue), May 1986, at 111.

25 David A. Bower, Jerold L. Waltman, Are Elected Judges More in Tune with Public Opinion? A Look at Sentences for Rape, International Journal of Comparative and Applied Criminal Justice, Spring 1994, vol. 18, no. 1, p. 114 - 117.

26 Riigi Teataja 1991, 38, 472, §§ 16, 18, 20 and 24.

27 Shimon Shetreet, op. cit., pp. 623-624.

28 The IBA Standards, 22. (a).

29 For an interesting discussion of the independence and accountability of judges related to the role of courts in society (the more judges are making policy the more accountability of judges is needed) see Peter D. Webster, op. cit., pp. 3 - 10.

30 The Legal Status of Judges Act, subsections 7 (1) and (2).

31 The Montreal Declaration, 2.22.

32 The IBA Standards, 22. (b).

33 The State Pensions Act of 1993 as amended in March 20, 1996, Riigi Teataja I 1993, 15, 256, § 5.

34 Release and removal are discussed as separate issues because the Legal Status of Judges Act has established different procedures for removal (possible only on disciplinary action) and release (possible if a judge resigns, reaches mandatory retirement age and on other occasions).

35 The U.N. Basic principles, 18. Similar provisions are also included in the Montreal Declaration (2.38) and in the IBA Standards (30).

36 The Legal Status of Judges Act, subsection 19 (1).

37 The Legal Status of Judges Act, § 26.

38 Shimon Shetreet, op. cit. p. 624.

39 The Montreal Declaration, Explanatory note to 2.20; similar text is in the IBA Standards (23. (a)).

40 The President can release judges on the proposal of the Chief Justice of Riigikohus. The Legal Status of Judges Act, § 27.

41 The Montreal Declaration, 2.33 (a), (b); IBA Standards, 31.

42 The U.N. Basic Principles, 20; the Montreal Declaration, 2.37.

43 The U.N. Basic Principles, 20.

44 See Sharon Shetreet, op. cit., p. 608, 631.

45 See J. Cottrell, The India Judges’ Transfer Case, International and Comparative Law Quarterly, 1984, Vol. 33, p. 1032.

46 The IBA Standards, 12.

47 The Montreal Declaration, 2.18.

48 See J. Mark Ramseyer and Frances McCall Rosenbluth, Japan’s Political Marketplace, 1993. chs. 8 and 9.

49 The Montreal Declaration is silent on this point.

50 The Legal Status of the Judges Act, § 9.

51 The Montreal Declaration, 2.20.

52 The IBA Standards, 23. (b).

53 The Montreal Declaration, 2.16.

54 The Courts Act, §§ 16., 18., 20., 24.

55 The Courts Act, §§ 22 and 25.

56 There are only three circuit courts and therefore the Riigikohus is in a position to have enough information about the judges to make optimal decisions.

57 The Montreal Declaration, 2.17.

58 Riigi Teataja I, 1993, 31/32, 538, § 14 (3) 1).

59 Shimon Shetreet, op. cit., p. 627.

60 Id.

61 The IBA Standards, 15. (a); The Montreal Declaration 2.19 a).

62 The Legal Status of the Judges Act, §§ 29-31. The salary of the Chief Justice of the Supreme Court equals that of the Prime Minister and the salaries of other justices and judges are a certain lower percentage thereof.

63 The Legal Status of the Judges Act, §§ 29-31.

64 Riigi Teataja, 1993 I, 31/32, 538, § 16.

65 The IBA Standards, 6.

66 The Courts Act, §§ 16, 18, 20, 27.

67 There are certain indications that with respect to formal guarantees of judicial independence, Italy, Portugal, and Spain differ significantly from the other civil law countries, in providing for appointment of judges by and vesting responsibility for court administration in a judicial body.

68 See Shimon Shetreet, op. cit., pp. 644-645.

69 The Montreal Declaration, 2.40.

70 The IBA Standards, 8.

71 See Shimon Shetreet, op. cit., p. 644.

72 See e. g. The IBA Standards, 3. (b); 23. (b).





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