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We need to talk about the health of judges

Ruth Prigoda
Tallinn Administrative Court judge

Close your eyes for a moment and think about a situation that could end in permanent or partial incapacity for work and whether you would be willing and able to carry out high-quality work thereafter. Then consider whether you would want your case to be heard by a judge who has an addiction or mental disorder that limits their ability to understand or control their own behaviour, but who is afraid or unable to quit their job because they would lose their income and they have no savings. Or what would you think if the case was handled by a judge who does not understand their own state of health and the fact that it is no longer possible for them to work as a judge?

As I started writing this article, various scenarios crossed my mind and time and again I found myself asking what difference it makes whether it is a judge or a regular employee or official. Everyone has their one and only health and whatever happens to it, it is certainly unexpected and difficult for themselves and their loved ones. So, what is it that makes a judge’s job special, this spunk[1] that Pippi was looking for, which distinguishes the occupation of judges from others and which, in turn, justifies additional state support in the event that a judge is partially or completely incapacitated for work?

In my opinion, this special spunk has been specified in the Constitution and the Courts Act. It is the duty of a judge and of the state, more broadly, to guarantee the independence of the administration of justice in every sense of the term, and it is the obligation of the judge to tolerate the constraints that this duty entails. The independent administration of justice is one of the core functions of the state and perhaps the most important link in terms of guaranteeing the rule of law. Such administration of justice is like freedom – as long as it exists and works, we ignore it and take it for granted. However, if it is threatened or lost, everyone notices it. In order to ensure the independence of judges and thus of the administration of justice, various social guarantees have been developed over the years to prevent the risk of corruption and, more generally, to ensure that judges are able to focus solely on the administration of justice and do not have to think, on a daily basis, about how to pay the bills or how to make ends meet once they retire. The independence of judges is not necessary for the judges themselves, but for the parties of the proceedings and for the functioning of the rule of law as a whole. After all, we do not want to have judges, who can be bribed because they need, for instance, expensive cancer treatment or an assistive device, administering justice.

By abolishing a number of social guarantees, the state has transformed the office of a judge into that of a highly paid public sector lawyer with substantial restrictions in their activity, with the remaining social guarantees as of 1 July 2013 being their robe, a lifetime in office and a salary determined by the law. Judges appointed until 1 July 2013 are also guaranteed a judges’ pension, but there are already 106 judges without such pension and this number is only increasing. Between 2023 and 2025, 53 judges will become entitled to a judges’ pension (16 of them have already filed an application or the President of the Republic has adopted a decision to release them from office). Thus, the share of judges recruited after 1 July 2013 in the judiciary is expected to be around 62.5% over the next three years. All of this means ongoing competitions, and we can already see that no one wishes to participate in competitions and that judges make a considerable effort to look for suitable candidates on their own. I would dare to say that the position of a judge is no longer attractive, on the one hand, due to very extensive restrictions and their extremely heavy workload, but on the other, due to the loss of social guarantees and the devaluation of their salary over time.

The need to reintroduce the benefit for incapacity for work for judges is more pressing than ever before

In 2021, the Estonian Association of Judges conducted a survey concerning workload among judges of the first and second instance, the results of which were startling even for the association itself. The survey indicated that among the respondents:

5% considered their workload excessive;
1% considered their workload to be a stress factor;
9% work outside normal working hours or at weekends, with 31.5% of respondents doing so at least a few times a month;
1% found that their workload affected their personal life on a daily basis and 44.5% said that their workload affected their personal life occasionally;
2% felt that they did not have enough free time to spend with their family, and as many as 55.9% felt that their free time was so insufficient that it did not allow them to rest at weekends;
several respondents pointed out that they do not have time to do anything else apart from work, and that constant exhaustion caused by their job does not allow them to engage in leisure activities;
some judges pointed out that they do not have enough time to recover from work and even sleep;
many of the respondents described health problems caused by their workload.

The numbers quoted are frightening, but behind them lies a real concern that Estonia’s judicial system, which has been considered one of the most efficient in Europe for years, is working itself ill. The Justice Scoreboard[2], a comparative table of justice systems published in 2022, showed that Estonia ranked second in Europe in terms of the speed of settlement of civil and administrative cases[3] and fifth in terms of the number of cases per capita[4]. However, is such a highly efficient judicial system, which according to the results of the workload survey relies on the overtime work of judges at the expense of the time spent with their family, sustainable and safe for the health of judges?

Considering how many medical articles have been published on the subject and how much it has been discussed in the media, you do not need to be a doctor or even a doctor’s daughter[5] to understand the health risks posed by overworking: heart attacks, strokes, burnout, being distracted when driving, etc. If you add the mental health and addiction disorders that can result from overworking, or the vision and back problems caused by working with digital files every day, the picture gets even bleaker. Often, judges simply do not have the time in their work to notice their health problems and go to the doctor, which is why they are diagnosed and start treatment too late. Therefore, taking all of the above into consideration, it cannot be excluded that there are judges working in the judicial system who have health problems and who continue to work as judges due to lack of benefits and insurance, although this leads to the further deterioration of their health, an increase in the workload of their colleagues and a drop in the quality of the work results of the court. So I think there are plenty of reasons to worry.

I am not suggesting that a pension or benefit for incapacity for work would solve the problem of overworking. There are other solutions to the problem of overworking: appointing additional judges and taking a critical look at the tasks that courts have been given so far. A recommendation to work 40 hours a week[6], take rest breaks set out in legislation[7] or take 35 days off a year is not a solution either. It sounds like the mantra of an occupational health doctor, but I know from first-hand experience that it results in more unfinished work, more sleepless nights and more stress. After all, the allocation of cases to judges is not suspended when they are on holiday.

If a judge were to decide to take 35 consecutive days off and not think about work at all, the average judge would receive around 10-50 or more new cases during that time, which no one would start handling before the end of the judge’s holiday[8] and which the judge in charge of the case would have to deal with after their holiday. If we add to this already pending cases and the need to move on with these proceedings, then the current system turns holidays into a source of additional stress and overwork for judges. The suggestion to take regular rest breaks is also simply meaningless advice for a judge writing a thorough judgement or order. I do not know about my colleagues, but writing a judgement or a detailed order, for example, takes me hours, and taking obligatory breaks[9] during that time would simply make resuming work difficult, because in the meantime my mind has wandered off and new thoughts and concerns have emerged. Therefore, if we, as a state, have decided that we have a very small number of judges who have to carry out a very large amount of highly responsible work to a very high standard and within a reasonable period of time, then these people must be valued. To this end, judges should be given a definite message that they are important and if something happens to them at work or otherwise, they will not be left alone with their concerns.

The issue of social guarantees, including pension or benefits for incapacity for work, is also topical because fewer and fewer people want to become judges, and without the prospect of receiving a judges’ pension in the future, nothing but their conscience and sense of duty keeps judges in the judicial system. For us, working as a judge is a wish to contribute to the functioning of the rule of law, but looking at the possibilities offered by the private sector (monthly sports compensation, supplementary health insurance for employees, bonuses, employer’s pension and contributions to the third pension pillar, additional sickness benefits, etc.), it has to be admitted that the judicial system falls far behind with what they have to offer.

If you were to post a job vacancy for a judge of the first instance in a job portal today, it might look something like this: “We are looking for the best legal scholar in their field, who is independent and willing to unwaveringly uphold the principles of the rule of law. We offer you endless work for life, the average salary of the top experts in the sector, unlimited working hours, the opportunity to put your health to the test and the obligation to give up the chance to secure your future. You can get creative in making up your incentive package and guarantees of independence, subject to the limits laid down in the law and the principle that fulfilling your duty to administer justice is of utmost importance.” It does not invite you to apply, does it?

Yet, it is in the interests of the society and the parties of the proceedings that the best in their field settle the case and shape the practice of law, not a ‘there-were-no-better-applicants’ judge or a ‘his-health-will-not-hold-up-but-leaving-work-would-make-him-fall-into-poverty’ judge. Hence the question of whether the state, in order to gain the best legal talent in the judiciary while competing with the private sector, should guarantee to judges and their families that if something should happen to a judge’s health, they will be guaranteed the opportunity to continue their life with dignity outside the judicial system. It is by no means difficult to answer this question with yes. Considering the general case-by-case practice until 1 July 2013 (it would take the fingers of one rather than two hands to count all the cases), this cost is essentially non-existent in the overall national budget.

Benefits related to the loss of a judges’ capacity for work

The pension related to judges’ incapacity for work was regulated in 1996 for the first time, when the Status of Judges Act[10] provided for a disability pension as part of the judges’ pension, which was paid regardless of the judge’s age to disabled people in the first, second and third group who had worked as a judge for at least 15 years. The regulation of 1996 set out the payment of benefits to judges who became disabled in the course of performance of their duties as a result of an illness or injury and excluded the payment of a pension if the judge continued to work in their position.

Section 80 of the Courts Act which entered into force in 2002 provided for a pension for incapacity for work among the pensions of judges, to which judges became entitled in the event of a 40-100% loss of work ability after 15 years of service as a judge, even if the judge had not reached retirement age. However, the payment of the pension for incapacity for work was not subject to the loss of capacity for work in connection with the performance of duties or the existence of a causal link between the loss of capacity for work and the judge’s work.

Subsection 80 (1) of the Courts Act laid down that in the event of permanent incapacity for work that emerged while working as a judge, the judge is entitled to a pension for incapacity for work. The law did not provide for rules on how to establish the circumstances on the basis of which the pension for incapacity for work is granted and, for example, how judges are released from office. It was important that the judge’s incapacity for work was permanent and that it had occurred while they were working as a judge. Such a regulation ensured that a judge whose health deteriorated while on duty could vacate the post with peace of mind to a newcomer who could continue to resolve cases in a dedicated manner. The living standard of the judge who vacated their post did not change to such an extent that they had to give up their home, for instance. I have never heard of anyone abusing the system or of it being unreasonably costly for the state.

The judges’ pension for incapacity for work was abolished on 1 July 2013, although it remained in force until 1 July 2016, with certain reservations. As of 1 July 2016, the previous pension for incapacity for work is replaced by section 83 of the Courts Act, which stipulates that if a judge is killed or dies or a judge’s capacity for work decreases in connection with the performance of the judge’s duties, the state pays a benefit on the basis and pursuant to the procedure of section 49 of the Civil Service Act.

Subsection 49 (6) of the Civil Service Act provides that if it is established that an official has partial or no work ability on the basis of the Work Ability Allowance Act due to an injury received or illness suffered as a result of an accident related to the performance of duties, they are paid a benefit based on the level of work ability established by the Estonian Unemployment Insurance Fund upon the first assessment, in the amount of their two years’ average salary in the case of partial work ability and in the amount of their seven years’ average salary in the case of no work ability. Therefore, subsection 49 (6) of the Civil Service Act can only be applied to compensate for a decrease in capacity for work if such a decrease occurred in the performance of official duties and as a result of an accident. In the case of an illness or health problem not caused by an accident, section 49 of the Civil Service Act is of no use.[11] The Civil Service Act does not regulate the definition of an accident, but in the meaning of the Occupational Health and Safety Act an accident is a fire, explosion or another incident at a workplace which may endanger the life and health of employees and other persons. I really cannot imagine what kind of situation in the work of a judge could give rise to a right to compensation under section 49 of the Civil Service Act.

When I think about the work of judges and possible accidents, I can only think of comical examples, but these probably do not belong to that category either. For example, stumbling on one’s robe when rushing to a hearing and falling on the courthouse stairs, falling into a land improvement well overgrown with bushes at an on-the-spot inspection or getting into a car accident while driving there came to mind. Thus, under the current regulation, the possibility of receiving compensation is merely apparent. Under the old system, for example, if a judge was hit by a car at an unregulated crossing on their way home, took a bad fall on a slippery pavement or fell seriously ill, resulting in permanent or partial incapacity for work, they could receive a benefit. Today, there would be no option of receiving a benefit, and the judge would only be entitled to receive a work ability allowance under the Work Ability Allowance Act, which is 57% of the daily rate (EUR 279.24 per month) for a person with partial work ability and 100% of the daily rate (EUR 489.90 per month) for a person with no work ability.[12] In addition, we can only hope that the person who caused the damage will compensate for it.

As mentioned above, our judiciary is essentially constantly working overtime, and the health risks associated with this include heart attacks, strokes, burnout, depression, etc. If a judge were to suffer a heart attack or stroke due to overwork while working in a courthouse, it would perhaps be possible, at least in theory, to conclude as a result of an investigation that it was an occupational accident. But what happens if they have a heart attack or stroke in their home office or outside working hours? What time could be considered outside working hours? Namely, the law does not stipulate that a judge must work five days and 40 hours a week. According to the Courts Act, judges organise their working time independently and in such a way that their duties are performed within a reasonable time, considering the procedural time limits prescribed by law (subsection 6 (1)). So, the Courts Act already presupposes that a judge could work 24 hours a day, 365 days a year, and basically anywhere.

But what happens when a judge is diagnosed with depression or burnout as a result of long-term overwork? Would this be an occupational disease? Probably not, although according to section 4¹ of Regulation no. 66 of the Minister of Social Affairs of 9 May 2005 “List of occupational diseases”, which entered into force on 1 January 2023, post-traumatic stress disorder and other diseases caused by psychosocial hazards in the work environment may also be considered occupational diseases[13]. The list of the regulation is rather limited and cannot be applied to the work of a judge very well. Therefore, a very large number of health conditions caused by overtime work cannot be called an occupational accident, an occupational disease or an injury received or illness suffered as a result of an accident related to the performance of duties as provided for in subsection 49 (6) of the Civil Service Act.

Until 1 July 2015, when the Work Ability Allowance Act came into force and the pension for incapacity for work was replaced by a work ability allowance, the pension for incapacity for work was still linked to the person’s length of service and salary. The current work ability allowance is not linked to previous income or length of service. You do not need a higher mathematical education; a legal education is sufficient to understand that the work ability allowance is drastically lower than a judge’s normal income. This would not even cover the cost of an average home loan or utility bills in winter. It is also evident that such support is drastically lower than the rates in force until 1 July 2013. Therefore, if something were to happen to a judge, the state would essentially turn them into a recipient of subsistence benefits and put them in a situation where they would have to make very difficult choices to survive. For this reason, I dare to argue that the system created by the legislator favours a situation where a judge who has lost their capacity for work continues to work instead of retiring.

Only fools rush in – or not?

Looking at the whole system, one cannot help but wonder how such an abolition of social guarantees was possible in the first place, and whether the judiciary really merely stood by in silence. If we look at the evolution of the draft act on the abolition of social guarantees, there is no sign of a social debate. On the contrary. Such an important change was made in a manner typical of Estonian legislation: between the first and second reading of the draft act in the Riigikogu.

After the first reading of the draft act, the Government of the Republic submitted amendments to abolish social guarantees to the Riigikogu, after which the draft act amending the Temporary Organisation of Payment of Salaries Bound to National Average Wage Act and Salaries of Higher State Servants Act[14] became the act amending the Temporary Organisation of Payment of Salaries Bound to National Average Wage Act, Salaries of Higher State Servants Act and Courts Act.

It is also noteworthy that the Constitutional Committee of the Riigikogu, which was the committee processing the draft, essentially did not discuss the amendments submitted by the government that would remove the social guarantees of judges. Namely, the Committee’s meeting lasted an hour and 20 minutes, with four substantive matters on the agenda, plus issues submitted on an ongoing basis. And that is not all. The draft act abolishing the social guarantees of judges was discussed at an additional sitting of the Riigikogu on 21 November 2012 at 05:08 at night.[15] Thus, the social guarantees ensuring the independence of the judiciary were abolished without any social debate and the only focus was on increasing the salary.

I cannot claim that the changes were made in secret from the judges, as they were indeed discussed at the 66th meeting of the Council for Administration of Courts, which took place on 20-21 September 2012. It is worth noting, however, that this debate essentially focused on the choice between a dignified salary without social guarantees and a mediocre salary with social guarantees. Based on the minutes of the meeting of the Council for Administration of Courts, it should also be noted that the members of the Council found it very disconcerting that such changes had to be discussed in haste and that a decision had to be taken not only for current but also for future colleagues. I could not find anything indicating the involvement of the Estonian Association of Judges in the abolition of social guarantees for judges. However, following the abolition of social guarantees, the Estonian Association of Judges has repeatedly called for their restoration[16], which has also been supported by the Council for Administration of Courts[17]. Therefore, I dare to claim quite confidently that the abolition of guarantees in 2012 was carried out without any substantial consultation with the judiciary and without looking ahead.

Let us talk then about the dignified salaries that the judiciary received in exchange for the abolition of social guarantees and which should guarantee the sustainable development of the judicial system. On 1 July 2013, the official salary of a judge of the first instance was EUR 3380. At that time, the minimum wage was EUR 320[18] and the average gross salary was EUR 949[19]. The judges’ salary was therefore 10.56 times the minimum wage and around 3.56 times the average salary. In 2022, the salary of a judge of the first instance was EUR 4747, the minimum wage EUR 654[20] and the average salary EUR 1685[21]. This means that the judges’ salary was 7.26 times the minimum wage and 2.82 times the average salary in 2022. After the deduction of taxes, the difference decreases even further.[22]

Thus, the salary of judges has significantly devalued over time, and we could raise the question whether the current salary is still in line with the legislator’s wishes, whether it is still dignified and whether it ensures the sustainability of the judicial system. Recent competitions show that while the decision may have seemed to save the system during the economic downturn in 2012, it was a double-edged sword that could now become an obstacle to the sustainable development of the judicial system.

I am still troubled by the question of whether abolishing social guarantees in this form and trusting the government could nevertheless have been a mistake made by the legislator in a rush, where they failed to foresee its impact in the future. We are used to reading and hearing in the media why and how teachers, doctors, rescuers and police officers should be valued, and how one or another group in society is prepared to go on strike to stand up for their rights. We do not hear anything about the fact that we need to value the 250 or so judges who ensure the functioning of the rule of law, and to guarantee the sustainability of the judicial system in the form of high-quality judges.

Judges essentially have no levers to stand up for their rights and interests. Judges do not have the right to strike[23], nor can they engage in ancillary activities, as the quality of the administration of justice would suffer. Neither can I see a possibility for removing the restrictions imposed on judges. After all, we do not want a judge who has to save money to secure their future and be ready for incapacity for work to be driving an app-based taxi or giving lectures on tax optimisation to business circles. It is therefore time to assess whether the abolition of social guarantees for judges in this form was the right thing to do, and if the answer to this question is negative or at least there is some doubt, then perhaps it is time to restore them at least partially.

I am sincerely glad that politicians have also started to realise that the decision taken in 2012 to eliminate social guarantees for judges may have been a mistake and that this mistake should be corrected. For example, in October 2020, a legislative intent to draft an act amending the Courts Act and other acts was published in the information system of draft acts[24], which saw the abolition of the previously existing pension for incapacity for work as a problem and wished to restore guarantees for judges comparable to the pension for incapacity for work in the event of a permanent reduction or loss of their capacity for work.

The legislative intent also found support in the Council for Administration of Courts, which, like the Ministry of Justice, had supported the abolition of social guarantees in 2012 in order to maintain a dignified salary.[25] Moreover, at the 2023 election of the Riigikogu, the Centre Party promised to “restore social guarantees for judges, which would motivate judges to work for a long time and would be equivalent to the social guarantees provided to judges in the Member States of the European Union”.[26].

I hope that the legislative intent of the Ministry of Justice of 2020 and the 2023 election pledge of the Centre Party demonstrate a real desire to address the guarantees of the independence of judges and to ensure the independence and attractiveness of the office of judges, the sustainability of the judicial system and the development of new judges. Let us not stop with the legislative intent and election promises. Let us move forward and do it!

What would be a dignified benefit for a judge who cannot continue to work due to their health?

This is a difficult question to answer, because no matter which starting point you choose, you will always come up against a problem that has no answer. Although I myself am of the opinion that the system in place until 1 July 2013 could be restored, this does not mean that the solution cannot be the payment of one-off compensation or that the system cannot be built up within the framework of a private insurance for incapacity for work[27] where contributions are paid by the state. Although there are many questions that have not been answered yet, this does not mean that these questions cannot lead to a result that satisfies all parties.

But let us not get ahead of ourselves. Let us first look at what kind of benefit for incapacity for work could be considered sufficient. In 2022, the Estonian Association of Judges carried out a survey on social guarantees.[28] According to the survey, 96.6% of the respondents[29] and 79.7% of the respondents[30] among judges not covered by the judges’ pension considered a work ability allowance linked to their salary to be important or very important. The majority of judges therefore consider it appropriate to reinstate the regulation in force until 1 July 2013, according to which a reasonable income would be guaranteed irrespective of the reasons for the loss of capacity for work.

As an alternative to restoring the previous situation, judges also considered a one-off compensation of three years’ remuneration in the case of partial incapacity and seven years’ remuneration in the case of permanent incapacity for work to be important or very important. In conclusion, the study suggests that judges themselves consider a benefit for incapacity for work that allows the incapacitated judge to retire and provides them with a dignified income to be appropriate in the case of complete incapacity for work. However, in the case of partial incapacity for work, a benefit that would compensate for the transition to part-time work (clause 37¹ (1) (2) of the Courts Act) or for leaving the office of a judge and taking up part-time work elsewhere could be regarded as sufficient.

As I pointed out earlier, I myself am on the side of those who are in favour of restoring the pension system for incapacity for work that was in force until 1 July 2013 or creating a similar system. This would send a clear signal that the state will extend a helping hand, where necessary, to a judge who has contributed to the rule of law and has worked in a stressful job for a long time, and that the judge’s income and standard of living will not decrease significantly in the event of complete or partial incapacity for work, thus giving the judge the opportunity to vacate their position for a newcomer. This would help to motivate those who have joined the judiciary to stay, and allow lawyers who have previously worked in other legal professions to decide to pursue a career as a judge. Compared to the private sector, this would be a clear advantage.

While we are used to lawyers and other legal professionals aspiring to become judges, I am not certain that this trend will continue. Already today, I have heard rumours that judges without social guarantees have expressed an interest in exchanging their work as a judge for that of an attorney in the future. By now, there has also been a case were lawyers taking part in a competition for the appointment of a judge withdrew their applications because the workload and salary are not compatible. Given that the average age of judges is around 49 and it is on a downward trend, it would not be surprising if they end up working as attorneys or other legal professionals to secure their pension.

The judicial system and the office of a judge should not be a hotbed of attorneys, notaries, prosecutors, etc., but the opposite should be – and is in developed countries – the case. Every successful holder of a legal profession should have the urge and desire to become a judge. In order to make the profession of judges attractive among the best in the field again, we need to establish rewards in the form of social guarantees alongside the heavy workload. I believe that none of us would want a judicial system that resembles a yard that everyone passes through or a hotbed for the Law Firm of Former Judges. Or even worse – imagine a situation where a judge diagnosed with cancer, for instance, collects donations to prolong their life and working days.

These are the questions that Estonia must ask itself already today if it is to continue as a state governed by the rule of law, and the state must find answers to these questions now. None of us would like to see the same systemic and long-lasting crisis in the administration of justice as we have in the medical system. I do not want us to have a discussion about closing court houses because nobody wishes to be a judge there. It is important, both for individuals and for the society as a whole, that justice is administered as close as possible to the persons concerned. Nor would anyone wish that the quality of the administration of justice or the speed of resolving cases suffered because of a shortage of judges. This would lead to a decline in the reliability of the judiciary, which in turn could result in cases being settled outside the judicial system, e.g. by means of vigilantism. This is not appropriate in a state governed by the rule of law.

What should the system of pension or benefits for incapacity for work be like?

Inspired by the legislative intent of 2020 and with repeated reminders from the judiciary, the Ministry of Justice tried to address the issue of judges’ benefit for incapacity for work again at the end of 2022. For this purpose, a meeting was held between the Estonian Association of Judges and the ministry, before which a vision of possible regulation was sent to the association’s management board. This did not differ much from the legislative intent. It was an ill-considered and, one might even say, Kafkaesque proposal, which would have been incorporated into the Courts Act in the form of a draft act, again essentially without a debate, between the first and second reading.

According to the ministry’s vision, which was communicated to the Estonian Association of Judges where it did not find support, in the case of a judge who lacks an understanding of their illness, the chairman of the court could draw up a proposal, after which a panel of experts would be convened to assess the judge’s capacity for work. It would then be possible to release the judge from office. Such a procedure cannot be regarded as respectful of the independence of the judge, since the judge whose state of health is to be assessed has been completely sidelined and made merely the object of the procedure. For instance, no attention was paid to what happens if a judge is unwilling to cooperate with the panel of experts or if their mental health does not make it possible for them to do so or if their health data have not been disclosed in the Patient Portal.

In such a case, the first idea to cross your mind should not be that the judge ought to be dismissed on the grounds of failure to cooperate. Since in the case described no one has assessed the health of the judge, the dismissal of the judge could not be based on clause 99 (1) (4) of the Courts Act either, which allows for the release of a judge from office due to their health if it prevents them from working as a judge. Solutions for the assessment of the state of health of a judge who does not understand their own condition and for their dismissal should be the result of cooperation between the executive power and the judiciary. The aim must be a procedure that guarantees the independence of the judiciary along with the possibility to challenge decisions.

In my opinion, the current system of assessment of work ability is sufficient to also cover judges. There is no need to create a special new system for judges. If the Estonian Unemployment Insurance Fund establishes that a judge is partially or completely incapacitated for work as a result of their assessment, the judge is either released from office or allowed to work part-time on the basis of their application. In return, they receive a pension for incapacity for work linked to the salary of their position or a one-off adequate benefit. It should simply be considered what the benefit or pension would be in the following cases:

a judge with partial work ability continues to work part-time pursuant to clause 37 (1) (2) of the Courts Act;
after a re-assessment by the Estonian Unemployment Insurance Fund[31], it is determined that instead of complete incapacity for work, partial work ability has been restored, or instead of partial incapacity for work, full work ability has been restored, or vice versa;
after a re-assessment by the Estonian Unemployment Insurance Fund, it is determined that partial incapacity for work has been replaced with complete incapacity for work.

The fact that one’s work ability can change over time, in my opinion, argues in favour of restoring the pension for incapacity for work linked to the judge’s salary, which is paid either until retirement or until the judge’s work ability is restored. This means that if regular assessments by the Estonian Unemployment Insurance Fund show that the judge’s work ability has been completely or partially restored, the state is able to reduce the amount of the benefit or even allow the former judge to return to work.

The situation is more complex if the judge does not have an adequate understanding of their illness. This refers to a situation where a person does not realise or is not aware of the fact that things are bad. Such symptoms are usually characteristic of psychiatric problems. In this case, it is not worth burying your head in the ground like an ostrich and hoping that the problem will resolve itself on its own. Problems do not tend to get resolved on their own, they need to be addressed. I do not think that the appointment to office for life in the judiciary should confer a special immunity, which means that under the auspices of lifetime appointment, judges continue to work at all costs and at the expense of the rights of the parties to the proceedings, even if their state of health does not allow them to work. The independence and impartiality of judges are values that protect first and foremost the parties to the proceedings and the legal system as a whole. This must be borne in mind here too.

What, then, should be the lever that would make a colleague without an understanding of their illness seek help or leave their job? It certainly cannot be a procedure which would make the judge the object of the proceedings and exclude the possibility for them to challenge their dismissal. Furthermore, dismissal for health reasons should not lead to a situation that would later exclude them from working in a legal profession[32]. A procedure in which the assessment of work ability is carried out with the knowledge of colleagues and – even worse, given the small size of Estonia – for instance, the parties to the proceedings, could not be considered appropriate with respect to the rule of law or in line with the lifetime appointment of judges. In our work, we often see how easy it is to label, and what the result of an unjustified ‘crazy’ label can be. A public procedure without the right of appeal would lead to a situation where the attitude towards the judge is prejudiced and where any party to the proceedings can diagnose the judge and, instead of a request for removal from office, request an assessment of the judge’s state of health in public (and repeatedly and in parallel in various proceedings). No one should be the target of such an attack.

To make sure that the entire article is not limited to mere reasoning, I propose two alternative solutions. The options I suggest are certainly not the only ones, but they help to open a broader discussion in order to find the best solutions.

First, we should look at the State Secrets and Classified Information of Foreign States Act. Since judges have access to state secrets due to their position, why not assess whether a judge is still fit to handle state secrets after a certain period of time?[33] Although the State Secrets and Classified Information of Foreign States Act does not currently provide for such an assessment, it could be a way of excluding from the judiciary those who have a mental disorder that limits their ability to understand or control their own behaviour, or who are addicted to drugs, psychotropic substances, alcohol or gambling. If such an assessment were also required for those who have a clearance by virtue of their office, it would provide an opportunity to assess and avoid certain risks. At the same time, however, it should be ensured that the procedure is transparent and protected by the right of appeal, and judges should be able to find out why they did not pass the assessment.

The second alternative could be to review occupational health and safety requirements and the leeway these provide. Current law does not preclude employers from imposing additional requirements if they consider it necessary in the interests of their employees’ health and safety. Mandatory health requirements have been established by law for some jobs, and certain psychiatric diagnoses preclude employment or service, for example, as a member of the Defence Forces, a police officer, a security guard, a rescue worker, a prison official, an explosives handler and pyrotechnician. So there are various options, but the important thing is that in any case judges must have the possibility to challenge their dismissal.

Conclusion

Social guarantees for judges are not a privilege of the judiciary, but are necessary to ensure an impartial, independent and objective administration of justice for the people. An underfunded judiciary with weak social guarantees can be at risk and be influenced. I sincerely hope that the objective of the abolition of social guarantees, including the pension for incapacity for work, in 2012 was only the state’s wish to save money to alleviate the economic crisis, and that in 2023 they are ready for a renewed debate in order to restore social guarantees that ensure the independence of the judiciary.

Given that the task of judges is to uphold constitutional values, and thus they play an essential role in the functioning of the rule of law, the cost of reinstating the pension for incapacity for work or paying extensive incapacity benefits cannot be considered unreasonable. According to an analysis of the electoral programmes of 2023, the cost of restoring social guarantees for judges would be EUR 800,000[34], although this would increase over time due to indexation[35]. This figure also includes the restoration of judges’ old-age pension. This is not an unreasonably large cost or one that Estonia would not be able to handle. However, the reinstatement the pension for incapacity for work or the payment of a benefit for incapacity for work would be a guarantee the society could offer and on account of which it could resolutely demand that every judge be fully independent at all times and in every case.

This would be a clear signal that the state values the functioning of the rule of law and that the office of a judge should not be held by persons partially or completely incapacitated for work, where at present it would be difficult, for humanitarian reasons, to suggest that they give up their judicial office and salary (and accept a work ability allowance) or work part-time (clause 37¹ (1) (2) of the Courts Act). It would also be a sign that the job of a judge is something more than that of a highly paid public sector lawyer. In addition, the payment of a pension or benefit for incapacity for work would also give the family of a judge the assurance that whatever happens to their family member, the state will not forget the judge’s contribution to the rule of law. To ensure the continuity of the office of judges, it needs to be respected again.

Coming back to the introduction of the article, I sincerely hope that none of us will ever have to handle anything like this and that, if we do, there will be a system in place to protect us and our loved ones again.

PS! I thank Kadri and Leanika for a critical review of the article and for helping me to organise my thoughts!

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[1] The word ‘spunk’ has spread both in Estonian and other languages through Astrid Lindgren’s book Pippi Longstocking and is an artificial word that has no single meaning. “One morning, Pippi told her friends Tommy and Annika that she had invented a ‘remarkably’ good word, ‘spunk’, but she didn’t know what it meant. Pippi’s friends said that if you don’t know what a word means, it’s of no use. That is why they started to look for a meaning for the word together, but the answer as to what a spunk was could not be found anywhere. Eventually, it was thought that a spunk was a small green insect with wings.”

[2] The 2022 EU Justice Scoreboard. – https://commission.europa.eu/system/files/2022-05/eu_justice_scoreboard_2022.pdf (21 February 2023).

[3] After Denmark.

[4] We were preceded by Denmark, Austria, Poland and Slovenia.

[5] The author’s mother is a doctor.

[6] According to subsection 6 (1) of the Courts Act judges organise their working time independently. Judges need to perform their duties within a reasonable time, taking into consideration the terms for proceedings prescribed by law.

[7] See Regulation of the Government of the Republic no. 362 of 15 November 2000 ‘Occupational health and safety requirements for working with display screen equipment’ – RT I, 26.02.2021, 19.

[8] Except for urgent matters.

[9] Pursuant to subsection 3 (4) of Regulation of the Government of the Republic no. 362 of 15 November 2000 ‘Occupational health and safety requirements for working with display screen equipment’ employers must organise their work in such a manner that employees can alternate working with a display screen with doing work tasks of a different nature in order to avoid problems stemming from overstraining the eyes and working in a forced position. If this is not possible, employees must be able to take periodic breaks. The duration of breaks must make up at least 10% of the time spent on working with a display screen.

[10] Act on Amendments to the Status of Judges Act. – RT I 1996, 73, 1294.

[11] The Administrative Chamber of the Supreme Court, 17 May 2022, 3-20-1231.

[12] At the time of writing this article, the daily rate is EUR 16.33, which would make up EUR 279.24 for partial incapacity for work and 489.90 euros for incapacity for work.

[13] According to section 9¹ of the Occupational Health and Safety Act, psychosocial hazards are work involving a risk of an accident or violence, unequal treatment, bullying and harassment at work, work not corresponding to the abilities of an employee, working alone for an extended period of time and monotonous work and other factors related to management, organisation of work and working environment that may affect the mental or physical health of an employee, including cause work stress.

[14] See https://www.riigikogu.ee/tegevus/eelnoud/eelnou/68593dc8-70a9-46fd-ad60-e26eb790b409/Eesti+keskmise+palgaga+seotud+ametipalkade+maksmise+ajutise+korralduse+seaduse%2C+k%C3%B5rgemate+riigiteenijate+ametipalkade+seaduse+ja+kohtute+seaduse+muutmise+seadus (21 February 2023).

[15] IV session of the XII composition of the Riigikogu, additional sitting of the Riigikogu on 30 November 2012, verbatim report. – https://stenogrammid.riigikogu.ee/et/201211301300#PKP-27414 (21 February 2023).

[16] See e.g. opinions of the Estonian Association of Judges of 29 December 2022: https://ekou.ee/doc/2020-12-29_EKoY-JM-ametikitsendused.pdf); https://www.err.ee/1029548/kohtunikud-tahavad-toovoimetuspensioni-tagasi; https://www.ekou.ee/doc/2019-03-13_EKoY-JM-TVpension.pdf (6 March 2023).

[17] Minutes of the 104th meeting of the Council for Administration of Courts. – https://www.kohus.ee/sites/default/files/dokumendid/104._protokoll_28.03.2019.pdf (6 March 2023).

[18] Regulation no. 6 of the Government of the Republic of 10 January 2013 “Establishment of Minimum Wage”. – RT I, 11.01.2013, 7.

[19] https://andmed.stat.ee/et/stat/majandus__palk-ja-toojeukulu__palk__aastastatistika/PA001/table/tableViewLayout2 (6 March 2023).

[20] Regulation no. 116 of the Government of the Republic of 9 December 2021 “Establishment of Minimum Wage”. – RT I, 11.12.2021, 17.

[21] According to Statistics Estonia, the gross monthly salary was EUR 1593 in the first quarter of 2022, EUR 1693 in the second quarter, EUR 1679 in the third quarter and EUR 1775 in the fourth quarter, giving an annual average salary of EUR 1685. See also https://www.stat.ee/et/avasta-statistikat/valdkonnad/tooelu/palk-ja-toojoukulu/keskmine-brutokuupalk (6 March 2023).

[22] As unemployment insurance contributions are not paid on the salaries of judges, based on the salary calculator (http://palk.crew.ee/), the differences would be as follows after the deduction of taxes (without joining a funded pension scheme): 3.53 times in 2013 (2700.44÷764.96); 2.77 times in 2022 (3797.60÷1372.54).

[23] Section 21 of the Collective Labour Dispute Resolution Act. – RT I, 26.06.2018, 21.

[24] https://eelnoud.valitsus.ee/main/mount/docList/204114d1-1d48-4627-b486-4546495918e0#CxccVW49 (6 March 2022).

[25] Minutes of the 104th meeting of the Council for Administration of Courts. – https://www.kohus.ee/sites/default/files/dokumendid/104._protokoll_28.03.2019.pdf (6 March 2023).

[26] Election platform of the Estonian Centre Party for the elections to the XV composition of the Riigikogu (2023). – https://keskerakond.ee/files/valimisplatvorm3.pdf (21 February 2023).

[27] The author does not know whether such insurance is available in Estonia today.

[28] The results of the survey have not yet been published.

[29] There were 87 respondents.

[30] There were 58 respondents.

[31] According to subsection 8 (1) of the Work Ability Allowance Act, an assessment is carried out every five years.

[32] For example, according to clause 27 (1) (7) of the Bar Association Act, a person who by a court judgment has been deprived of the right to be a judge is not admitted as a member of the Bar Association.

[33] See subsections 32 (1) and (2) of the State Secrets and Classified Information of Foreign States Act. – RT I, 06.05.2020, 36.

[34] I.e. in the event of the reintroduction of the system in force until 1 July 2013.

[35] Election promises of parties 2023. – https://www.fin.ee/media/8711/download (6 March 2023).