The Estonia Page > SocietyJudicial Reform in EstoniaContents:Judicial reform is an integral part of the process of restoring truly democratic independence in Estonia. The aim is to recreate a modern, efficient court system based on the Western European model and democratic principles. It will require the legislation and legal system to be humanised, bringing respect for human beings, as the point of departure for all other values, into focus. Thus, the courts have a central role. A legislative framework for the rule of law and the judiciary already exists, but it needs to be supplemented, formulated in detail and consistently implemented. In reforming the judicial system, Estonians have drawn from centuries of experience, for although their history as a sovereign nation is relatively short, law and the administration of justice figure prominently in their cultural heritage. ^ back to topBackground to the Judicial ReformEvery territorial unit in ancient Estonia — villages, village communities, and counties — had its own communal bodies, which carried out the basic functions of self-government within that community. These governing bodies acted as courts of law. For millennia, Estonia was relatively sparsely populated, and the old way of life was probably one of the most agrarian in Northern Europe. These conditions, and the need to safeguard the survival of small and widely dispersed clans and tribes, contributed greatly to the peaceful settlement of disputes and the leniency of punishment. Retaliatory punishment and outlawry were therefore rarely applied when dealing with lawbreakers. A certain form of ancient democracy thus fostered traditions of consensus and united leadership — traditions which also characterised the early court decisions. This social order was so deep-rooted among Estonians that, when their country was lost to foreign invaders in the early 13th century, the conquerors were forced to use existing land rights and local regulations. Estonians, on the other hand, learned from their conquerors. The geographical location of their homeland on the cross-roads between East and West has fostered tolerance towards ideas from either direction, and made them adept at analysing and synthesising these ideas. When an independent state was finally built in 1918, this store of ideas was drawn on. It serves as a basis even now. Small nations cannot afford destructive revolutionary reorganisations, but must stay on the evolutionary path of development even in times of radical change. This requires persistence, the courage to make decisions, and the ability to adapt old structures to new purposes. The Estonian system of law and justice bears the marks of ancient national law, but has, through German and Swedish rule, been just as strongly influenced by Roman law. The first truly Estonian national judiciary was developed after the turmoil of the First World War. Though the popularly elected Provisional National Council, had proclaimed itself the highest authority in Estonia as early as 28 November 1917, German occupation and the Russian revolution delayed the work of organising a national court system until the end of 1918. Meanwhile, in order to prevent a judicial vacuum, courts that were established under pre-revolutionary Russian rule continued be functioning. As a rule, these courts followed the same criminal, civil, and procedural laws that had been applied during the later part of the Russian era. A judicial reform in 1864 had brought Russian courts and legislation closely in line with Western Europe. In 1919, the National Court became Estonia’s highest court of law. Rural community courts lost their status as lower social class courts and were limited to matters concerning social welfare. Administrative courts, a new branch of the judicial system, were set up. The 1938 Courts Act marked the completion of a national judiciary. By that time, Estonia also had its own basic criminal and civil codes as well as procedural legislation. The forced imposition of Soviet rule in 1940 and Estonia’s incorporation into the Soviet Union meant an end to national sovereignty and the dismantling of the judicial system. All links providing continuity were abruptly cut and the National Court was liquidated. Kohtukoda (the Court of Appeal) and regional courts were replaced by a Supreme Court and people’s courts. District courts retained their name as first and second instance courts. In addition, all legal acts governing court proceedings were annulled, as were the civil and the criminal code. In their place, the Russian SSR codes and other legal acts were put into effect from 1 January 1941. All judges and prosecutors were dismissed from office and subsequently — unless they had been able to flee abroad — subjected to persecution. Twenty years’ work was thus demolished in about two months. ^ back to top1990 to the PresentThe restitution of Estonia’s independence has been a long process of political and legal steps, of which one of the most significant with respect to the judiciary has been the Declaration of Sovereignty on 16 November 1988. According to the declaration, the sovereignty of "the Estonian SSR" meant that the highest authority within its territory was the states own legislative, governmental and judicial institutions. On 30 March 1990, the Supreme Council of the Estonian SSR, acting at that time as the de facto representative of the people, stated its will to restore Estonian independence and declared the rule of the Soviet Union in Estonia illegal from its inception. As of the day of its implementation, and proclaimed the restitution of the Republic of Estonia (restitutio ad integrum). A decision by the Estonian Supreme Council of 16 May 1990, established that the judicial system of the Republic of Estonia was to be founded on the will of the Estonian people and universally recognised norms of international law. During the days of the August 1991 coup attempt the Estonian Supreme Council confirmed once more the national sovereignty of the Republic of Estonia and requested that diplomatic relations be restored on the basis of continuity. At the same time, a Constitutional Assembly was formed for the task of drawing up a constitution. The Constitution, which was adopted by popular referendum on 28 June 1992, establishes the rule of law and judicial power as the basic ideas. It determines the role of the courts and their position in the general system of government. Modern legal theories, the examples of other countries, Estonia’s own experiences from ancient times and the first period of independence, and current conditions and possibilities are taken into account. ^ back to topThe Restored JudiciaryThe Estonian court system is governed by Chapter 13 of the Constitution as well as the Courts Act and the Status of Judges Act, where it is clearly and emphatically stated that justice in the Republic of Estonia is administered by courts of law and that they solely exercise judicial power. The Estonian court system comprises: 1) County and City Courts and Administrative Courts; 2) Circuit Courts; 3) the Supreme Court. County, City Courts and Administrative Law Courts are first-level courts. County and City Courts deal with all civil and criminal cases, while Administrative Law Courts investigate cases which they have been specifically empowered to deal with. Administrative Law Courts are usually attached to County and City courts; special administrative courts can be set up whenever needed. Circuit Courts are second-level courts and hear appeals from first-instance courts. Circuit courts are divided into colleges according to the type of case under consideration, and decisions are reached after collegiate discussion. The Supreme Court is the final appeals court in Estonia. It considers court decisions which are appealed to them and may also, in cases specified by law, change a lower court decision or correct miscarriages of justice. Two new, previously non-existent functions have been added to the judiciary: constitutional review and administrative court proceedings. Constitutional review is exercised by the Supreme Court. The work of the Supreme Court is carried out by the following bodies:
Practical steps toward a judicial reform were initiated on 8 December 1992, when the Riigikogu (Parliament) appointed a Chief Justice of the Supreme Court. The reconstituted Supreme Court held its first session on 27 May 1993, in Tartu. On 1 October, the Soviet-era Supreme Court was abolished, and on 15 December 1993, a constitutional three-tier judiciary became operational. ^ back to topThe CourtsBy the end of 1994, Estonia had 2 administrative law courts (in Tallinn and Tartu), 21 city and county courts, 3 circuit courts (in Tallinn, Tartu and Jõhvi), and one higher court, the Supreme Court. In 1995, land register offices and business registries started operating at the courts. ^ back to topThe JudgesAs part of the judicial reform process, all former judges and other applicants were requested to apply for the position of judge. Applications are considered by the Judges’ Examination Commission, which also conducts examinations of candidates. Depending on the result of the examination, the commission recommends to the Supreme Court whether to nominate the candidate for appointment as a judge, to accord him or her the status of applicant for a period of up to two years, or to reject the application. Applicants must have completed the University of Tartu Law Program, or be otherwise equally qualified. In addition, an applicant must be a person of high moral character, have professional experience of legal work and must be at least 25 years old (30 for the Supreme Court). On the basis of the Examination Commission’s report, the Supreme Court decides whether to recommend the applicant for appointment to a judge’s office by the President of the Republic. At the end of 1994, a total of 166 judges held office in Estonia, of which 32 sat in administrative law courts, 101 in city and county courts, 33 in district courts and 16 in the Supreme Court. By that time the judicial corps had undergone a 67 per cent renewal. On average, judges had held office for 3.7 years. The average age was less than forty years. About 60 per cent of Estonia’s judges are women. ^ back to topLay JusticesUnder new procedural rules, most court cases are heard by a single judge. In civil proceedings lay justices may assist, if the parties so request, and in criminal trials in cases of serious offences or if the offender is under age. Lay justices are elected by local government councils. ^ back to topThe Organisation of the CourtsThe Courts Act guarantees the separation of the judiciary from other powers by leaving internal management questions directly related to the administration of justice to be solved by court personnel. This principle has been fully implemented in the case of the Supreme Court, which both legally and financially is totally independent. First — and second — level courts are superintended by the Ministry of Justice, which is also responsible for their finances and organisation. Question of general interest to the legal profession, or related to employment generally, are decided by the Supreme Court in full session and its chairman, while the specific issues of each individual court are decided by the chairman of that court. The Constitution defines an independent judiciary as, on the one hand, the freedom of the courts from all external influences, in particular the protection of administrative courts from any political pressure from the executive or the legislative powers; and, on the other hand, as the independence of judges and justices, and the administration of justice in accordance with the Constitution and laws. The principle of independence also extends to the right of the courts to act independently in their relationships with each other, regardless of whether or not a higher-level court is involved. The independence of judges and justices is legally guaranteed by the provisions under which they are appointed or elected. Judges and justices are nominated for appointment to office by members of the judiciary and can be removed from office only by court decision. The Constitution states that the Chief Justice of the Supreme Court is appointed by the Riigikogu on the recommendation of the President of Estonia. The Chief Justice then recommends other members of the Supreme Court for appointment by the Riigikogu. All other judges are appointed by the President on the recommendation of the Supreme Court. Judges are appointed for life without any reference to subordination. The provision for lifetime appointment, which in Estonian practice means a possible tenure extending to five years beyond pension age, is intended to further strengthen independence. While in office, judges may be charged with criminal offence or arrested only on the recommendation of the Supreme Court and with the consent of the President. The Chief Justice and members of the Supreme Court may be charged with criminal offence or arrested only on the recommendation of the Legal Chancellor and with the consent of a majority of the full house of the Riigikogu. In case of a lower-court justice, a majority of the local government council which elected him or her must agree that the actions of the justice merit criminal investigation. Further assurance of the independence of judges and courts is given in the rules governing legal procedures, in the clause guaranteeing the secrecy of court deliberations preceding decisions and prohibiting requests for their public disclosure also, charges can be brought for contempt of court and interference in court decision-making. A legislative framework for a state where the rule of law and the judiciary have uncontested power has been completed in the first phase of judicial reform. It now needs to be supplemented, formulated in detail, and consistently implemented. The quality of the work carried out by courts is directly dependent on the qualifications and performance of the judges. Considering that more than half of the judges holding office today are newly appointed, less experienced, young people, and that they must familiarise themselves with a revised set of laws, nothing is more important at this stage than training. The Judicial Training Centre was established at the Supreme Court at the beginning of 1944. In addition, a general programme for supplementary training, including a complete curriculum for 1995, has been prepared. The professional schooling of auxiliary staff, will be an equally important aspect of supplementary training. In order to avoid external influences judges are not allowed to work outside the judicial field except as teachers or researchers. No judge may:
For the purpose of taking disciplinary measures against judges, the Supreme Court has set up a Disciplinary Commission consisting of elected representatives of all categories of judges. Disciplinary proceedings are conducted with reference to the rules of conduct adopted by Estonia’s judges. ^ back to topConstitutional ReviewImpartiality and independence are necessary for the courts in order to carry out judicial control over legislative and executive authorities. Judicial control over legislative actions is exercised as constitutional review as prescribed by the Law on Constitutional Review Proceedings, and administrative actions are scrutinised by administrative law courts. Under the Constitution, anyone who considers his rights or liberties to have been violated may seek redress before a court. The Constitution offers private individuals and legal entities the choice of defending their rights either in court or by administrative procedures. The principle of monopoly on administration of justice is not to be interpreted as an obligation to bring all cases to count. If a party is satisfied with the solution reached by an administrative body, he/she may waive his/her right to have the matter reviewed by a court of law. As its supervisory functions include constitutional review, the jurisdiction of the Supreme Court extends to the Riigikogu as legislative body and the Government with respect to decisions affecting legal norms. For this a 5-member judicial college has been established, which is presided over by the Chief Justice of the Supreme Court. A matter may be referred to the full session of the Court, if at least one member of the college has expressed a dissenting judgement. Cases considered by the Constitutional Review Chamber include:
Request for constitutional review of laws, other legal acts and international treaties may be submitted directly to the Supreme Court by the President, the Legal Chancellor and lower courts. Whenever a court has declared a law or other legal act to be in conflict with the Constitution, it will report its decision to the Supreme Court and the Legal Chancellor, whereby constitutional review proceedings will be initiated in the Supreme Court. The Supreme Court has the power to either reject the appeal or to agree to review the case in full or in part, and to declare a law to be invalid wholly or in part. The power to nullify a legal act rests solely with the Supreme Court; other courts may declare an act unconstitutional and refuse to apply it. Judicial control of the constitutionality of Riigikogu decisions does not elevate a court above the status of the legislature, but leaves it on par with the lawmakers; the Judiciary is also bound to act within the powers that the Constitution allows them. In a state governed by the rule of law the power of an independent judiciary exerts a strong stabilising force and a balance on the structure of separate governmental powers. Whether this function works in practice depends on the capability of the judicial corps. Where it is lacking, the danger of sliding into legislative or executive rule is ever present. The stronger the acceptance of the rule of law as the basic ideology, the better the prospects for a strong judiciary. ^ back to topContinuing ReformThe development strategy and organisational concepts set forth in the Courts Act, the Status of Judges Act, as well as in the Procedural Code, have basically been exhausted. Estonia has reached a new stage of judicial reform when it is time to revise. Some important omissions and contradictions in the Procedural Code and other laws resulting from the exceptionally short time allowed for the drafting of those laws. New development projects have already been recommended. Useful Links:
^ back to topThe Estonia Page > SocietyThis fact sheet was published by the Estonian Institute in May, 1997 and is intended to be used for reference purposes. It may be freely used in preparing articles, speeches, broadcasts, etc. No acknowledgement is necessary. |