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15 years later: another attempt to change the administration of courts

Heiki Loot
Justice of the Supreme Court, head of the working group on the model of court administration

Mait Laaring
Adviser to the Constitutional Review Chamber of the Supreme Court

Introduction

On 28 June 2023, chief judges met at the invitation of the Ministry of Justice to discuss the future of the administration of courts. The discussion continued on the consultation day of the heads of courts on 29 August 2023, where the Secretary General of the Ministry Tõnis Saar proposed to transfer of the administration of courts from the Ministry of Justice to the courts.[1] The ministry was to retain its competence in the fields of legislative drafting, budget and data; it was ready to waive its competence in the area of court administration. The Secretary General’s proposal was discussed and various models of administration were considered, but no common understanding or solution was reached.

On 5 October 2023, changes to the model of court administration were discussed by the Council for Administration of Courts (CAC) who decided to support the change of court administration and the establishment of a working group for this purpose.[2] The Chief Justice of the Supreme Court formed a working group consisting of representatives of chief judges, judges, directors of courts and the Ministry of Justice, and where all court instances and branches are also represented.[3] On 8 December 2023, the CAC heard an interim review of the working group’s activities and decided to support the proposals made therein regarding the basic structure of the new model of court administration.[4] On the basis of the proposals, the legislative intent to draft an Act amending the administration of courts was completed and went through a round of approval.[5] On 8 March 2024, the CAC decided to support the preparation of the draft Act amending the administration of courts after the head of the working group had given an overview of the results of the approval of the legislative intent. At the time of writing this article, the working group is preparing a bill in order to submit it for discussion at the next meeting of the CAC in May.

The article gives an overview of the proposals of the working group as of 8 March 2024 and attempts to explain how they were reached. The working group considered it important to learn and draw conclusions from previous attempts to change the administration of courts in Estonia and from international experience. Particular attention was paid to the draft Courts Act 2009 and the model of court administration revised in Finland in 2020. In order to understand the proposals of the working group, it is inevitable that we know the starting points of the work of the working group, i.e. the restrictions that had to be taken into consideration when developing the proposals.

I Dispute over the model of court administration and the draft Courts Act 2009

There has been much debate about the optimal model of court administration for Estonia for a long time.[6] Dissenting opinions have focused primarily on the question of whether the courts of the first and second instance should be administered by the courts themselves or whether the executive power (Ministry of Justice) is able to do so better. As early as 1994, the then Chief Justice of the Supreme Court Rait Maruste made a proposal to transfer the administration of courts from the executive power to the judicial system.[7] His proposals were not included in the draft Courts Act submitted to the Riigikogu in 1998.[8]

The current model of court administration is based on the Courts Act adopted in 2002 and still in force today.[9] According to the first sentence of subsection 39 (1) of this Act, the judicial institutions of the first and second instance are administered in cooperation between the CAC and the Ministry of Justice. The judges have a narrow majority in the CAC and, in addition to them, representatives of other institutions (the Riigikogu, the Chancellor of Justice, the Prosecutor’s Office and the Bar Association) are also members. The CAC did not receive significant decision-making powers, but it was ensured the right to have a say in matters of court administration and thus balance the power of the Minister of Justice.[10] The Minister of Justice acts as the main decision-making body in the administration of courts, and the CAC has a coordinating and consultative role. It is therefore a model of court administration centred on the executive.[11] The alternative proposed by the judges, to administer the courts through a council for the administration of justice and a court administration subordinate to it, did not find support.[12] According to Uno Lõhmus, Chief Justice of the Supreme Court at the time, the reform of court administration was essentially not carried out.[13]

The separation of the administration of courts from the executive power was provided for in the draft Courts Act completed in 2009.[14] The tasks of the administration of all courts were to be transferred to the Council of Courts and the Centre for the Administration of Courts. The bill proposed that the administration of courts would be led by a Council of Courts consisting of 11 members, which would make the most important decisions concerning the court administration system. Judges were to constitute the majority of the Council (the chief justice of the Supreme Court and five judges elected by the court en banc), but it was also to include the Minister of Justice and the Minister of Finance, the chairmen of the Constitutional and Finance Committees of the Riigikogu and a representative of the Bar Association. The central performance of administrative tasks would have been concentrated in the hands of a judicial institution without adjudicative powers – the Centre for the Administration of Courts. An important role would have been played by the chief justice of the Supreme Court, who, in addition to the management of the Council of Courts, would have appointed the director general of the Centre for the Administration of Courts, supervised the activities of the Centre, represented the judicial system in budget negotiations, approved the budgets of the judicial system and judicial institutions, and performed a number of other tasks.

The bill was criticised because of the excessive power given to the chief justice of the Supreme Court and the establishment of subordinate relations characteristic of the executive power.[15] The Estonian Association of Judges and Supreme Court justices critical of the bill alleged that it deviated from the principles of the development of the judicial system adopted by the court en banc in 2007. According to[16] them, the director general of the court administration authority was to be appointed and the budgets of the judicial system and judicial institutions were to be approved by the CAC, not the chief justice of the Supreme Court.[17] Chief judges were to be accountable to the CAC, not to the chief judge of a higher court.Uno Lõhmus,[18] former Chief Justice of the Supreme Court, found that the chief justice of the Supreme Court should not be at the top of the pyramid of court administration, and recommended the Nordic, especially Danish, model instead, where the court administration authority is led by a collegiate management body – the council. It was also found that the bill does not ensure sufficient funding for the judicial system: there is no mechanism with which the chief justice of the Supreme Court would be able to fight for the necessary funds.[19] The bill was not adopted and was dropped from the proceedings in 2011 as the mandate of the Riigikogu expired.

II International development

Three main models of court administration can be distinguished in European democracies governed by the rule of law [20]

1) The Central European model, where courts are administered by the executive (e.g. Germany, Austria)

2) The Southern European model, where a judicial council has been formed, in particular for the appointment of judges and for disciplinary matters (e.g. France, Italy)

3) The Northern European model, where an independent court administration authority has been established for the administration of courts, headed by a collegiate council with a majority of judges and other court officers (e.g. Sweden, Denmark)

It has been an apparent trend in recent decades to increase the right of self-administration of the judiciary, as a result of which fewer and fewer countries have left the administration of courts to the Ministry of Justice.[21] Finland’s court administration reform in 2020, which transferred a large part of judicial administration tasks from the Ministry of Justice to the Courts Administration (Tuomioistuinvirasto[22]), can be regarded as one of the most notable recent examples. The reform was based on the Swedish and Danish model of court administration, which was adapted to the specific circumstances of Finland. One of the main objectives of the reform was to increase the accountability of the courts and judges for the results of the judicial system[23], but the aim of ensuring the independence of the courts in the event of possible undesirable political changes was not insignificant either[24].

The task of the Finnish Courts Administration is to ensure the necessary conditions for the work of the courts and to develop, plan and support the work of the courts. The Administration is an independent state authority under the Ministry of Justice. It makes proposals regarding the budget of the courts to the ministry and decides on the allocation of the budget between the courts. The Administration takes care of court premises, information systems, training of judges and court employees, staffing and service relations, communication and court development projects. It also supports the work of the Judge Selection Committee and the Training Council. The highest decision-making body of the Courts Administration is a council comprising eight members, appointed by the government for a term of five years. The council is made up of six judges from different levels and branches of the judiciary[25], a representative of court employees and an expert in the management of public administration. The council determines the main objectives, strategy and management principles of the Courts Administration and decides on the budget proposals for the Courts Administration and the courts which are to be submitted to the Ministry of Justice, on the allocation of the budget between the courts, on the creation, abolition and transfer of positions for judges (other than judges of the highest courts), and on any other matters relevant to the activities of the Administration. The day-to-day management of the Courts Administration is the responsibility of the director general who is appointed by the council for a term of five years. The Courts Administration has three departments[26] and employs about 60 people.

Against the background of international development, Estonia has found itself in a situation where it must be acknowledged that our court administration is an exception compared to other Nordic and Baltic countries.[27] In our neighbouring countries, the executive power no longer has a role in the administration of courts, as it does in Estonia’s rather Central European model. In the Nordic countries, the administration of courts has been handed over to court administration authorities led by independent councils (Domstolsverket in Sweden, Domstolsstyrelsen in Denmark, Domstoladministrasjonen in Norway, and the aforementioned Tuomioistuinvirasto in Finland). In Lithuania, the administration of courts is in the hands of a council consisting only of judges (Teisėjų Taryba) and a court administration authority under the Supreme Court (Nacionalinę teismų administraciją). The Ministry of Justice has maintained a larger role only in Latvia, which is balanced by the Judicial Council (Tieslietu padome) chaired by the chief justice of the Supreme Court and served by the Supreme Court, and a court administration authority (Tiesu administrācija) has been formed, which is separate from the Ministry of Justice but subordinate to it.

III Starting points for the work of the working group and objectives of changing the administration of courts

In the light of the foregoing, moving forward with a self-regulating model of administration seems to be a natural and inevitable development. Considering the willingness expressed by chief judges to take more responsibility for the development and management of the judicial system[28], the proposal of the Ministry of Justice to change the administration of courts fell on fertile soil. The willingness of chief judges to make changes was confirmed by their active participation in the discussion of the new model of court administration on the consultation day of the heads of courts in August 2023. The discussion revealed that the chief judges of the courts of the first and second instance primarily prefer to create a uniform model of court administration for the entire judicial system under the leadership of the Supreme Court. Another preference was to transfer the competence of the Ministry of Justice in the field of court administration to the CAC and a court administration authority, headed by the management board of the courts, which consists of chief judges and the managing director of the court administration authority appointed by them.[29] The chief justice of the Supreme Court did not support these models.

The working group on the change of court administration began its work by familiarising itself with the overview of the current system of administration of the courts of the first and second instance prepared by the Ministry of Justice, the draft Courts Act of 2009, the Finnish court administration model, and the conceptual design of the court administration model reflecting the second preference of the chief judges of the courts of the first and second instance.[30]

As the next important step, the working group determined the starting points of its work. The working group acknowledged that there is no point in developing proposals where it is clear from the outset that they will not find support. The first matter to be taken into consideration was the position of the Ministry of Justice, according to which the ministry must maintain the necessary levers for shaping legal policy when the administration of courts is handed over: legislative drafting in relation to the organisation of courts and judicial proceedings, the budget of courts and data on the activities of courts. Considering the constitutional powers of the government and the minister, this condition is understandable.[31] Nevertheless, the working group has been asked often whether it made sense to accept a proposal related to such a condition at all or whether it should have been rejected immediately. Leaving aside the fact that the admissibility of the proposal had been assessed by the CAC when it decided to support a change in the administration of courts and the establishment of a working group for this purpose, the working group also found that it was worth it to continue work on the proposal. While the condition related to this may not meet all the expectations and wishes of the judiciary, it nevertheless makes it possible to move forward with the development of courts and securing their independence. It is better to take a step forward than to wait for a new opportunity that may not come anytime soon or at all.

In particular, the working group has been frequently asked about the budget: can the self-government of courts be taken seriously if the courts’ budget still remains in the hands of the ministry? The working group found that introducing a change to the budget process may remain a longer-term issue. First of all, it must be seen whether and how the budget of the Supreme Court and other constitutional institutions can be changed, how well it will work and what kind of results it will yield.[32] Until this has been successfully implemented, the situation where the Minister of Justice is responsible for the budget of the courts of the first and second instance in the political arena should be maintained. The minister has leverage in the government and a support base in the Riigikogu.[33] The working group specified that the ministry retains responsibility only for the combined budget of the courts and the opportunity to obtain general information about the activities of the courts, not the opportunity to inquire about specific cases.

Secondly, the working group realised that it is neither possible nor necessary to reverse the process of centralising state support services when changing the administration of courts. Therefore, it must be assumed that the real estate management, accounting service and IT management of the courts will continue to be provided by Riigi Kinnisvara AS, the State Shared Service Centre and the Information and Communication Technology Centre. At the same time, the working group considered it necessary to further work on the question of how to divide the tasks of IT development between the Centre of Registers and Information Systems and the judicial system.

Thirdly, the working group decided to refrain from proposals concerning the structure of the administration of justice at the courts (full court, chief judge, chambers, departments). The structure of the administration of justice must not necessarily be changed in order to alter the administration of courts. The transfer of court administration from the Ministry of Justice to the judicial system is in the common interest of the courts and judges. To implement it, unanimity must be maintained and proposals that may divide the judiciary must be avoided. The recently adopted Act amending the Courts Act[34], which sets out the creation of court departments that generated considerable resistance among judges[35], is a cautionary example.

Fourthly, the working group took into consideration the viewpoint of the Supreme Court, according to which the Supreme Court is not governed by the new model of court administration.[36] When approving the legislative intent to prepare the draft Act amending the administration of courts, the Supreme Court took a wait-and-see approach, saying that the later addition of the highest court can be considered when the new model of court administration has started to function effectively.[37]

The working group also considered it important to agree on the objectives of changing the administration of courts from the outset. This will help to better find solutions and assess their suitability.

The working group set the increase in the responsibility and decision-making power of the courts in their development and administration as its first objective. This prioritised objective marks, on the one hand, a change in the role of the Ministry of Justice – shifting its focus from the management of the administration of courts to the shaping of legal policy – and, on the other hand, responds to the willingness of the courts to take on more responsibility for the administration and development of the courts.

The second objective set by the working group expresses the main expectation of the judiciary with respect to the change in the administration of courts – to increase the independence of the judiciary from the executive. The Minister of Justice’s current far-reaching powers regarding the judiciary pose a serious threat to the independence of the courts in the event of political developments that are hostile towards the courts.

According to the first half of the third objective of the working group – to reduce the dilution of responsibility in the administration of courts – it is necessary to change the situation where responsibility for the administration of courts is fragmented between the Ministry of Justice, the Council for Administration of Courts and the Supreme Court. The second half of the third objective of the working group – to broaden the cross-judicial perspective on the development and administration of courts – seeks to answer the question of who sees and represents the common interests of all courts in the judicial system. Each court is an independent judicial institution, but a large part of the issues that need to be resolved in the development of the courts are cross-judicial and require a holistic view.[38]

The fourth objective – to ensure a uniform and consistently high-quality court administration service for all courts – expresses dissatisfaction with the current situation where the availability and level of support services varies between courts and should be better.

IV New role for the Council for Administration of Courts

After determining the starting points and objectives, the working group identified which issues and tasks concerning court administration within the competence of the Ministry of Justice can be transferred to the judiciary.[39] Taking into consideration the example of Finland and other Nordic countries and the criticism concerning the draft Courts Act of 2009, the working group took the position that the competence of the Ministry of Justice in the field of court administration must be transferred to a new self-government body of judges – the Judicial Administration Council – and not to the Supreme Court or its chief justice. The fourth starting point of the working group, according to which the Supreme Court is not administered by means of the new court administration model, contributed to the formation of such a position.

The working group found that the Judicial Administration Council can be given the power to decide on all issues that do not require the issue of a regulation. In addition to the condition set by the Ministry of Justice (the first starting point), the working group did not want the change in the administration of courts to be hampered by legal disputes over the Judicial Administration Council’s right to issue regulations. Thus, the determination of the judicial district of the courts must be left to the Minister of Justice to decide, since this must be done by a regulation. However, it should not lead to any disputes if the issue of a regulation were linked to a proposal by the Judicial Administration Council. Thus, the working group came to the proposal that the judicial districts of the courts are determined by the Minister of Justice based on the proposal of the Judicial Administration Council, and the locations of the courthouses are decided by the Council itself. In the opinion of the working group, decisions on the positions of judges must be divided between the legislator and the Judicial Administration Council. In order to ensure the independence of judges, on the one hand, and to keep the costs related to their positions under control, on the other hand, the maximum total number of judges should be established by law. However, the exact number of judges in courts of the first and second instance and their distribution between courthouses could be determined by the Judicial Administration Council instead of the Minister of Justice. The announcement of competitions for judges, on the other hand, should be transferred to the Supreme Court, which is responsible for conducting the competition and makes proposals to the President for the appointment of judges. In the area of the management of courts of the first and second instance, the appointment and dismissal of chief judges and the supervision of the performance of their duties should be transferred from the Minister of Justice to the Judicial Administration Council. The working group proposed to divide the tasks related to the budget so that the Judicial Administration Council prepares the combined budget application of the courts of the first and second instance, defends it in the Ministry of Justice and, after the minister has approved the combined budget of the courts, approves the budgets of the courts. The ministry will remain in charge of budget negotiations in the Ministry of Finance, the government and the Riigikogu, where a representative of the Judicial Administration Council could also participate, if necessary.

In conclusion, the following key tasks can be transferred to the Judicial Administration Council:

1) Determining the locations of courthouses and making a proposal to the Minister of Justice with respect to the determination of the judicial districts of the courts

2) Deciding on the number of judges in the courts of the first and second instance within the limits of the total number determined by law, and their distribution among the courthouses

3) Appointing, dismissing and supervising the chief judges of the courts of the first and second instance

4) Preparing the combined budget application of the courts of the first and second instance and representing the courts in the Ministry of Justice as the budget application is reviewed

5) Approving the budgets of the courts of the first and second instance after the Minister of Justice has approved the combined budget of the courts

This is not an exhaustive list of the tasks and powers of the Judicial Administration Council. In addition, there are tasks relating to the development of the courts (e.g. drawing up and approving the development plan for the courts), participation in legislative drafting concerning the courts (e.g. preparing drafts and giving opinions on them), representation of the judiciary in relations with other branches of power on matters relating to the administration of courts, the power to issue internal regulations (e.g. establishing the procedure for calculating additional remuneration for judges’ on-call time), and powers relating to the Court Administration Service (e.g. determining its tasks and appointing its director). The list should remain open to allow the Council to discuss and decide on other matters at the strategic level in the administration of courts.

The working group proposed the establishment of the Judicial Administration Council through the reorganisation of the current CAC. The current consultative and coordinating body must become a decision-making body at the strategic level of court administration. The Judicial Administration Council would be the highest body in the management of court administration, directing the development and administration of the courts and making the most important decisions concerning court administration. In order to highlight the task of developing the courts, the legislative intent to draft the Act amending the administration of courts proposes to rename the Judicial Administration Council as the Judicial Administration and Development Council.

In order to work effectively, the number of members of the Judicial Administration Council cannot be excessively large and should range from 7 to 11. In order to establish a complete self-government body and take responsibility for the development of the courts, the Council must be composed primarily of judges, which means that the number of extra-judicial members in it should be reduced compared to the current CAC.[40] In order to balance the interests of various parts of the judicial system and to ensure broad-based decisions, judges from all levels and branches of the judiciary should be represented in the Council. Although the model being developed does not administer the Supreme Court, it is necessary to ensure the representation of the Supreme Court because the Council will make decisions that affect the functioning of the judicial system as a whole. From the Supreme Court, the Council should include its chief justice by position, based on their well-established role in representing the judiciary as a whole in parliament[41] and in public. Considering this role, it is also natural that the chief justice of the Supreme Court is the chairman of the Council. When transitioning to the new model, the working group considered it important that the judiciary is represented by one person and that it is the judge with the greatest legitimacy. In this case, the position of the judiciary in relations with other branches of power is stronger. At the same time, being the first among equals in the leadership of the Council, the role of the chief justice of the Supreme Court is in no way comparable to the broad powers that were an obstacle to the 2009 draft Courts Act.

In order to ensure the representation of all court instances and branches administered, the Council should include at least one circuit judge, one judge from the civil department of a county court, one judge from the offences department of a county court and one administrative judge.[42] According to the principle of the self-government of judges, these members of the Council should be elected by the court en banc, i.e. by all judges collectively. It is important that members who are judges are able to see the big picture and proceed from the interests of the judicial system as a whole in their activities, instead of only fighting for their court or instance. This requires a change in the organisation of the elections of the court en banc.[43] As the Council will supervise the chief judges of the courts of the first and second instance, they cannot be members of the Council, but the current practice of the CAC, according to which chief judges participate in the meetings of the Council with the right to speak, could be continued.[44]

The self-governing nature of the Council does not mean that all its members must be judges. The practice of Finland and other Nordic countries shows that it is customary to include non-judicial members in the councils of court administration authorities.[45] Its purpose is to bring an extra-judicial viewpoint to decision-making and increase the expertise of the Council.[46] At the same time, the participation of external members ensures that no level or branch of the judicial system has a predetermined predominance over others in the Council. Since the judge members of the Council are best able to assess what additional knowledge or skills or external viewpoints they need in that particular composition of the Council, it could be up to them to choose the external members. They should also have the right to choose whether representatives of institutions or specific persons are invited to become non-judicial members.

The question of whether members of parliament could or should be included in the composition of the Council is debatable. Although the involvement of politicians can be regarded as a practical benefit, a broadening of the view or an increase in democratic legitimacy, according to international recommendations, members of parliament and government as well as other politicians should not be part of judicial councils.[47] Similarly, the Finnish Courts Act expressly prohibits the participation of members of the parliament, the government and even local governments and municipal councils in the council.[48] According to the Secretary General of the Ministry of Justice of Finland, the Council must not only work independently but also appear independent.[49]

During the approval process of the legislative intent to draft an Act amending the administration of courts, the former Chief Justice of the Supreme Court Rait Maruste proposed the establishment of a broad-based Judicial Council for the administration of courts, consisting of representatives of the courts, the legislature, the executive and professional organisations (e.g. the Bar Association, the Prosecutor’s Office). The Council should discuss not only issues of court administration but also wider issues of judicial policy-making and the development of the judicial system.[50] The working group found that the Judicial Council does not replace the Judicial Administration Council. If the mandate of the council is too broad, it may happen that issues concerning the administration of courts do not receive sufficient attention. However, if the composition is too broad, the effectiveness of decision-making may suffer. Either way, it does not have a good impact on the quality of court administration. Therefore, the working group took the view that the establishment of the Judicial Council could be considered in addition to the Judicial Administration Council, not instead of it. The Judicial Council is more suited to discussing the justice policy than to managing the administration of justice.

V Court Administration Service

For the day-to-day development of courts and the provision of support services, the working group proposes the establishment of a single organisation – the Court Administration Service. This is necessary to ensure a consistent high-level administration service for all courts (the above-mentioned fourth objective).

The Service would handle all tasks related to court administration, the centralised performance of which is reasonable and expedient, including:

1) court administration tasks performed by the Ministry of Justice so far, which are not transferred to the Judicial Administration Council (e.g. the provision of substantive and technical services to the Council);

2) current administrative tasks performed across courts (e.g. training of court officials, translation and archival services);

3) the administrative tasks performed by court directors so far (e.g. financial and asset management) and some administrative tasks of chief judges (e.g. communication).

The division of administrative tasks between the Service and the courts, as well as the determination of more specific tasks of the Service, should be left to the competence of the Judicial Administration Council, as the expectations and needs related to support services may change over time. In the long term, the duties related to the provision of services to and the work of the self-government bodies of judges (e.g. Judge Examination Committee, Training Council), which are currently performed by the Supreme Court, may also be transferred to the Service.[51]

Following the example of Finland and other Nordic countries, the Court Administration Service could be formed as a separate state authority. In order to place the Service within the judiciary, rather than the executive, it could be considered a judicial institution without the function of the administration of justice within the meaning of section 7 of the Courts Act. This was also envisaged in the draft Courts Act of 2009. The working group noted that under the current austerity policy, it is difficult to create a new state authority, which is why the Service must initially be formed at an existing judicial institution.[52] Since the Supreme Court is not managed within the framework of the proposed model, a place must be found for the Service in the composition of a court of a lower instance. According to the working group, a court of the second instance is better suited for this. Considering the current trend of placing cross-court services outside the capital, where possible, the working group proposed to establish the Court Administration Service at the Tartu Circuit Court. This does not mean the physical concentration of positions existing within the Service or to be created in the future at the court where the Service is located.

Although the Court Administration Service is established in the composition of the circuit court, this only has a formal meaning. The Service is directly subordinate to the Judicial Administration Council. The chief judge of Tartu Circuit Court will not have management or supervisory functions with regard to the Service, nor will they be able to decide on the use of its budget. This solution is based, in principle, on the current model of management of the courts of the first and second instance, where the court is headed by the chief judge and the director of the court within their competence, between whom there is no relationship of subordination and both of whom are subject to the direct supervision of the Minister of Justice. Joint services (translation service, archival service) have also been brought together under the management of court directors, serving all courts of the first and second instance.[53] In order for the Court Administration Service to be able to provide court administration services to all courts in a uniform manner, it must not become dependent on the chief judge of a court, neither in substance nor in appearance.

The Court Administration Service is headed and represented by a director, who is appointed and dismissed by the Judicial Administration Council. The director reports directly to the Council, not to the chief judge of the circuit court. The director is obliged to cooperate closely with the chief judges of all courts of the first and second instance. In order to ensure cooperation, consultation days for the heads of courts should be held synchronously with the meetings of the Judicial Administration Council, allowing chief judges and the director to discuss the most important issues before the meeting of the Council. This form of cooperation and the participation of chief judges in the work of the Council with the right to speak must ensure that the Service does not remain distant from the daily concerns of the courts and still works for the courts. The director should be in office for a fixed term, but if the cooperation does not work out, the Judicial Administration Council must have the possibility to dismiss them earlier.

VI Final remarks and conclusion

The new opportunity to change the administration of courts must be used. At its heart is the transfer of competence in the area of court administration from the executive to the judiciary. The issue, which has been dragging on for thirty years, can be resolved. Past experience indicates that the implementation of changes requires the unanimity of the judiciary. According to the main structure of the new model developed by the working group, tasks related to court administration will be transferred to the Judicial Administration Council based on the self-government of judges and the Court Administration Service subordinate to it. The new model is not perfect and does not meet all the expectations of the judges, but it is still sufficient for moving forward. Longer-term issues related to the budget of the courts, the organisational form of the Court Administration Service and the service of all self-government bodies of judges will be addressed in the next stage of development. The work of the working group has not yet been completed and will continue in connection with the details of the new model. The working group realises that it will not be able to finalise all the details at once. It is important to propose a model that enables development and is sufficiently flexible to continue to look for and find the best solutions. The risks associated with the new model also require attention.[54] They need to be recognised, managed and mitigated. However, the new model is an opportunity for improvement, which justifies taking risks.

____________________________

[1] At the meeting of the Council for Administration of Courts on 5 October 2023, the Secretary General explained that the idea emerged in the spring of the same year, when a discussion arose as to why the directors of courts must be appointed by the Ministry of Justice and why the courts cannot do it themselves. See minutes of the 126th meeting of the Council for Administration of Courts, p. 3. – https://www.kohus.ee/sites/default/files/dokumendid/126.%20protokoll%2005.10-06.10.2023_0.pdf (05.04.2024).

[2] Ibid, pp. 3-5.

[3] The working group consists of Supreme Court Justice Heiki Loot (head of the working group), Chief Judge of Viru County Court Liina Naaber-Kivisoo, Chief Judge of Tallinn Circuit Court Villem Lapimaa, Judge of Tartu County Court Rutt Teeveer, Deputy Secretary General for Judicial Administration Policy Mari-Liis Mikli, and Director of Tartu Courts Tiina Ereb. The working group is assisted by Mait Laaring, Adviser to the Constitutional Review Chamber of the Supreme Court; Maris Möls, former Adviser to the Chief Justice of the Supreme Court and current Senior Judicial Clerk of Tallinn Circuit Court; Kristi Kirsberg, Head of Communications for Estonian Courts, and Üllar Kaljumäe, Director of the Supreme Court.

[4] Minutes of the 127th meeting of the CAC, pp. 11-14. – https://www.kohus.ee/sites/default/files/dokumendid/127.%20istungi%20protokoll.pdf (05.04.2024).

[5] Legislative intent to draft the Act amending the Courts Act (model of court administration). – https://eelnoud.valitsus.ee/main/mount/docList/b896254f-41da-42e6-990a-b1ca77a9577f?activity=1#XyGMtLHq (05.04.2024).

[6] For an overview of the development of court administration in Estonia, see e.g. U. Lõhmus. Kohtuhaldus kohtute seaduse eelnõu järgi. – Juridica 2010/2, pp. 75-77; I. Pilving. – P. Pikamäe (editor-in-chief). Kohtute seadus. Kommenteeritud väljaanne. Tallinn 2018, pp. 184-187.

[7] R. Maruste. Kohtureform – kas lõpu alguses või alguse lõpus? – Juridica 1994/5, pp. 103-105. Further developments: R. Maruste. Eesti kohtusüsteemi juhtimise korrastamise kava. – Juridica 1995/5, pp. 199-205; R. Maruste. Kuidas korraldada kohtukorraldus. – Juridica 1997/10, pp. 501-505; R. Maruste. Põhiseadus ja justiitsorganite süsteem. – Juridica 1998/7, pp. 326-327.

[8] Draft Courts Act, 889 SE, VIII composition of the Riigikogu. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/e423e464-6495-399d-9a14-034f9515dd60/kohtute-seadus (05.04.2024). The bill was dropped from the proceedings due to the expiry of the mandate of the Riigikogu.

[9] RT I 2002, 64, 390; RT I, 04.01.2024, 4.

[10] I. Pilving (reference 6), p. 186.

[11] Ibid, p. 193.

[12] Draft Courts Act, 607 SE, IX composition of the Riigikogu, explanatory memorandum of the initiator, section 3.9. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/bd1b5c32-b483-38ce-aed8-1f9a0e647528/kohtute-seadus (05.04.2024).

[13] U. Lõhmus (reference 6), p. 77.

[14] Draft Courts Act, 649 SE, XI composition of the Riigikogu. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/b05e68b5-7f81-a11a-485a-85fdff01f55c/kohtute-seadus (05.04.2024).

[15] I. Pilving (reference 6), p. 187; for a longer and more in-depth discussion see U. Lõhmus (reference 6), pp. 81-85.

[16] Decision of the court en banc of 9 February 2007 ‘Principles for the development of the court system’.

[17] Opinion of the Estonian Association of Judges of 8 February 2010 on the draft Courts Act. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/b05e68b5-7f81-a11a-485a-85fdff01f55c/kohtute-seadus (05.04.2024).

[18] Opinions, comments and proposals of Supreme Court Justices Peeter Jerofejev, Henn Jõks, Jüri Ilvest, Ott Järvesaar, Ants Kull, Villu Kõve, Lea Laarmaa, Jaak Luik, Priit Pikamäe and Tambet Tampuu on the draft Courts Act. See also the opinion of Supreme Court Justices Jüri Ilvest, Peeter Jerofejev, Henn Jõks, Ott Järvesaar, Eerik Kergandberg, Hannes Kiris, Ants Kull, Villu Kõve, Lea Laarmaa, Jaak Luik, Priit Pikamäe and Tambet Tampuu on the draft Courts Act, submitted to the Constitutional Committee of the Riigikogu on 11 January 2010.

[19] Draft Courts Act, 649 SE, XI composition of the Riigikogu, annex 2 to the explanatory memorandum. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/b05e68b5-7f81-a11a-485a-85fdff01f55c/kohtute-seadus (05.04.2024).

[20] For more information, see I. Pilving (reference 6), p. 188; U. Lõhmus (reference 6), pp. 79-80; Eesti kohtuhalduse arengustrateegia. Tööversioon esitamiseks Vabariigi Valitsusele (Estonian development strategy for court administration. Working version for submission to the Government of the Republic), 2006, pp. 46-48, 54-56.

[21] U. Lõhmus (reference 6), p. 80.

[22] For more information, visit the website https://tuomioistuinvirasto.fi/ (05.04.2024).

[23] Pekka Timonen, Secretary General of the Ministry of Justice of Finland, at a meeting with the working group on the amendment of court administration on 8 November 2023.

[24] Pasi Kumpula, Head of the Development Department of the Finnish Courts Administration, at the annual meeting of the Estonian Association of Judges on 24 November 2023.

[25] Specifically, one judge of the highest court, one judge of the highest administrative court, one judge of a court of appeal, one judge of the first instance, one administrative judge and one judge of a special court. One of the judge members of the council must be the chief judge of a court of appeal or of the first instance and one the chief judge of an administrative or special court.

[26] These are 1) the Finance Department, which is also responsible for performance management and court premises; 2) the Development Department, which is also responsible for the development of judges and court staff and the maintenance and development of court information systems; and 3) the Human Resources Department.

[27] V. Peep. Eesti kohtud täna ja homme. – Juridica 2022/7, p. 498.

[28] A. Asi, L. Loide, L. Naaber-Kivisoo, T. Talviste. Independent administration and administering independence. – Yearbook of Estonian Courts 2022. – https://aastaraamat.riigikohus.ee/en/independent-administration-and-administering-independence/ (05.04.2024).

[29] Interim summary of the activities of the working group on the model of court administration for the 127th meeting of the CAC, Annex 6.

[30] Ibid, pp. 3-6.

[31] According to subsection 87 (4) of the Constitution, the government submits bills to the Riigikogu, and according to subsection 5, the government prepares the draft of the state budget and submits it to the Riigikogu. Pursuant to subsection 87 (6) of the Constitution, the government and, pursuant to subsection 94 (2), the minister issue regulations.

[32] The relevant bill was initiated by the Finance Committee of the Riigikogu on 4 March 2024. See draft Act amending the State Budget Act, 391 SE, XV composition of the Riigikogu. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/19ce0193-3c49-458f-8eb5-496f360dde11/riigieelarve-seaduse-muutmise-seaduse-eelnou-algatamise-ettevalmistamine (05.04.2024). The bill establishes a basis for the approval of the budget applications of constitutional institutions by the Finance Committee of the Riigikogu before initiating the draft state budget in the Riigikogu.

[33] The working group is aware of both Lithuania’s cautionary experience, where the budget autonomy of the courts may have contributed to a long-term freeze on judges’ salaries, and Finland’s encouraging experience, where the courts’ budgetary link with the Ministry of Justice was maintained as the administration of courts was changed and where the courts’ budget increased significantly after the change in court administration.

[34] RT I, 01.03.2023, 1.

[35] Draft Act amending the Courts Act and other acts in connection therewith, 633 SE, XIV composition of the Riigikogu. – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/5f154ed9-4920-4bde-98c6-63af7f5f7264 (05.04.2024). See, for example, the additional opinion of the Estonian Association of Judges of 3 October 2022 on the draft Act amending the Courts Act and other acts.

[36] This position was formulated by the full court of the Supreme Court at a field meeting on 31 October 2023.

[37] Opinion of the Supreme Court of 26 February 2024 on the legislative intent to draft the Act amending the Courts Act (model of court administration), p. 1. – https://adr.rik.ee/riigikohus/dokument/15130923 (11.04.2024).

[38] A. Asi et al. (reference 28).

[39] Interim summary of the activities of the working group on the model of court administration (reference 29), Annex 7.

[40] This is also in line with international recommendations, according to which the majority of members must consist of judges elected by judges. See e.g. Opinion No. 24 of the Consultative Council of European Judges (CCJE) of 5 November 2021, para. 30. CCJE Opinion No. 24 (2021): Evolution of the Councils for the Judiciary and their role in independent and impartial judicial systems. – https://rm.coe.int/opinion-no-24-2021-of-the-ccje/1680a47604 (05.04.2024).

[41] Pursuant to subsection 27 (3) of the Courts Act, once a year, the chief justice of the Supreme Court presents an overview of the administration of courts, the administration of justice and the uniform application of law to the Riigikogu.

[42] According to section 2 of the Warsaw recommendations of the Organisation for Security and Cooperation in Europe (OSCE), no appeal or other higher-ranking judges should dominate in the Council. See OSCE Office for Democratic Institutions and Human Rights. Recommendations on Judicial Independence and Accountability (Warsaw Recommendations) 2023. – https://www.osce.org/files/f/documents/c/5/552718.pdf (05.04.2024).

[43] For example, the procedure for nominating candidates should be specified, and they should also be given the opportunity to present their views.

[44] Rules of Procedure of the Council for Administration of Courts, subsection 5 (5). Online: https://www.riigikohus.ee/et/kohtute-haldamise-noukoda/kohtute-haldamise-noukoja-kodukord (05.04.2024).

[45] According to the standard of the European Network of Councils for the Judiciary, non-judicial members must make up at least one third of the composition of the council. See European Network of Councils for the Judiciary (ENCJ). Standard VI: Non-judicial Members in Judicial Governance. ENCJ Report 2015-2016, section 1.3. – https://www.encj.eu/images/stories/pdf/workinggroups/encj_standards_vi_2015_2016_adopted_ga_warsaw.docx.pdf (05.04.2024)).

[46] According to section 3.2 of Standard VI of the European Network of Councils for the Judiciary (see previous reference), attorneys and other lawyers, researchers, other experts (e.g. sociologists, psychologists, economic experts, personnel management specialists) and representatives of civil society may be suitable as non-judicial members.

[47] See e.g. Standard VI of the European Network of Councils for the Judiciary (see reference above), sections 3.3 and 3.6.

[48] Tuomioistuinlaki, fourth paragraph of section 7 in chapter 19a. – https://www.finlex.fi/fi/laki/ajantasa/2016/20160673#O4-2L19aP7 (05.04.2024).

[49] Pekka Timonen, Secretary General of the Ministry of Justice of Finland, at a meeting with the working group on the amendment of court administration on 8 November 2023.

[50] Rait Maruste. Kohtuhalduse muutmisplaanist. – ERR, 6 February 2024. – https://www.err.ee/1609243620/rait-maruste-kohtuhalduse-muutmisplaanist (05.04.2024).

[51] Opinion of the Supreme Court of 26 February 2024 (reference 37), p. 1.

[52] The validity of the position of the working group was confirmed by the letter of the Ministry of Finance of 21 February 2024 on the approval of the intention to draft the Act amending the Courts Act (court administration model). – https://eelnoud.valitsus.ee/main/mount/docList/b896254f-41da-42e6-990a-b1ca77a9577f?activity=1#XyGMtLHq (05.04.2024).

[53] V. Peep (reference 27), p. 499.

[54] Some have been discussed by V. Peep (reference 27), pp. 498-499.