Development plan of the courts – for whom and for what?

Kaidi Lippus
Managing Director of the Chamber of Notaries, former Head of the Courts Division of the Ministry of Justice

 

At its 127th meeting on 8 December 2023, the Council for Administration of Courts (CAC) supported the formation of a working group for the preparation of the next development plan for the courts. Villem Lapimaa, Chief Judge of Tallinn Circuit Court, was appointed as the leader. Work was quickly started, and on 21 December 2023, the Chief Justice of the Supreme Court Villu Kõve issued a directive to form a working group whose task was to develop a draft development plan for the courts so that the preliminary summaries would be submitted for discussion to the CAC meeting in May 2024 and to the court en banc.

Although the CAC uses the wording ‘the next development plan of the courts’ in its decision, I consider it much more significant that we have reached the point where it is to be prepared, as it is the first development plan covering the entire judicial system.

The development plan of courts of the first and second instance 2020-2023[1] can only conditionally be considered a precursor of the new development plan. At the time, the development plan was prepared with the involvement of judges and in close cooperation with chief judges, the chairs of the chambers, the heads of courthouses and the members of the CAC, but it did not cover the activities of the Supreme Court, it was not discussed in the court en banc, and the CAC (or indeed any other body) did not approve it.

Thus, the current preparation of the development plan is a novel process; therefore, it is only fitting that we delve into the issues of why and for whom the development plan is drawn up and what place it occupies in the organisation of the state’s development documents.

In this article, I will first give an overview of the system of strategy documents of the Estonian state, try to place the previous development plan of courts of the first and second instance therein, and share thoughts about the preparation of the new development plan. As a side story, I will discuss the need for and benefits of strategic planning for an organisation with the help of theoretical foundations and briefly explain the aspects that support the implementation of the strategy. Finally, judges Kristjan Siigur and Neve Uudelt have commented on my efforts to bring clarity to the world of development plans at my request.

Strategic planning of the state

The strategic planning of the state is regulated by the State Budget Act, the third chapter of which sets out the framework and bases for the state budget. According to section 19 of the State Budget Act, the strategic development documents of the state are the long-term development strategy of the state, the general principles of policy, and the sectoral development plan and programme. The Act stipulates that strategic development documents must be consistent with one another. It has been specifically mentioned that constitutional institutions are not obliged to prepare strategic development documents.

The long-term development strategy of the state is a development document that determines the comprehensive vision for policy areas, national strategic goals and significant changes required for implementing them for at least 15 years. The long-term development strategy of the state is adopted by the Riigikogu either on its own initiative or based on the proposal of the Government of the Republic. Currently, this strategy is the ‘Estonia 2035’ framework[2] established on the basis of the proposal of the Government of the Republic in 2021, which brings together the most important strategic goals and policies of Estonia and links them with the financial possibilities of the state. Within the framework of ‘Estonia 2035’, the Tree of Truth[3] was created as a measure of indicators important for the state, which can be found on the website of Statistics Estonia and which shows how the state is doing in achieving the goals that have been set.

The general principles of policy is a development document that determines the vision, national objective and priorities for one or several interrelated policy areas. The general principles of policy generally do not set measurable objectives as it is a general document that provides the direction in which the state should be headed and the principles to be followed in the development of the sector in the long term (15 years or more).

The general principles of policy are also adopted by the Riigikogu either on its own initiative or based on the proposal of the Government of the Republic. There are seven general principles of policy currently in force[4]. These are the general principles of state reform and good governance, Estonian security policy, climate policy, Earth’s crust policy, sports policy, and two development documents in the area of justice: the general principles of criminal policy until 2030[5] and the general principles of legislative policy until 2030[6].

A sectoral development plan is a development document that comprehensively determines the general objective and sub-objectives for one or several policy areas, the indicators providing an opportunity to measure these and the policy instruments through which it is planned to achieve the established objectives. The development plan is prepared at least for the budget strategy period. It is approved by the Government of the Republic, but it is submitted to the Riigikogu for discussion beforehand.

On the basis of subsection 20 (3) of the State Budget Act, the Government of the Republic has established the regulation ‘Procedure for the preparation, implementation, reporting, evaluation and amendment of the sectoral development plan and programme’[7]. According to this, the initiation of the development plan is decided by the Government of the Republic. They appoint the responsible minister who forms a steering committee for the sectoral development plan, which consists of representatives of the relevant ministries, the Government Office and stakeholders as well as experts. A development plan is usually drawn up for a period of 7 to 10 years and is implemented through programmes.

There are 17 sectoral development plans in force and five development plans under preparation.[8] The field of justice is more directly affected by Estonia’s Digital Agenda 2030, the Youth Development Plan 2021-2035 and the Internal Security Development Plan 2020-2030 as well as indirectly by a number of other plans.

A programme is a development document that determines the measures, indicators, activities and financing scheme for the achievement of a sub-objective of a performance area. The programme is used to implement a sub-objective of the sectoral development plan and is approved by the minister. The programme is prepared and amended in the preparation of the budget strategy and the state budget.

If no development plan has been drawn up for a performance area, a programme can be prepared to achieve Estonia’s long-term strategic goals, i.e. currently those of ‘Estonia 2035’.

The development of courts of the first and second instance is addressed in the programme of the Ministry of Justice for 2023-2026 under activity No. 5 ‘Ensuring the administration of justice, legal registers and legal services’ in the rule of law performance area.[9]

Voluntary strategy documents of public authorities

Pursuant to subsection 19 (7) of the State Budget Act, constitutional institutions are not required to prepare strategic development documents. Nor do other laws impose such a task on them. However, several constitutional institutions have done so. Thus, there is Eesti Pank’s strategy until 2028,[10] and the auditor general has established the National Audit Office’s strategy for 2020-2024 with their directive[11]. Neither strategy refers to other strategy documents of the state. For example, the strategy of Eesti Pank addresses the issue of climate neutrality and mentions climate policy objectives but does not directly refer to the general principles of climate policy until 2050.

There are other strategy documents in the public sector that are not based on the State Budget Act, such as the strategy of the Information System Authority for 2021-2025.[12] The Information System Authority is in the area of government of the Ministry of Economic Affairs and Communications. While the Ministry of Justice has one programme for its entire area of government, the Ministry of Economic Affairs and Communications has six, among which the Information System Authority is involved in the knowledge transfer programme and the digital society programme. At the same time, the Information System Authority refers to the Digital Agenda in its strategy but does not mention either programme. As we delve into the hierarchy of development documents under the State Budget Act, this also seems logical: the strategy of the institution implementing the objectives of the development plan is more general than the programme, where the measures, indicators, activities and financing scheme for the achievement of a sub-objective of a performance area must be presented.

The Police and Border Guard Board has also created the strategy #PPA2030^[13], which, however, does not mention either the general principles of policy or the development plans. The Internal Security Development Plan 2020-2030^[14] refers to both the general principles of policy and several development plans, and in order to implement it, the Minister of the Interior has approved the Internal Security Programme 2024-2027. The programme also mentions some development needs and activities of the Police and Border Guard Board, but the strategy documents are not linked to each other.

Development plan of the courts in the state’s system of strategy documents

Now that we are familiar with the state’s system of strategy documents and have studied the strategic planning of several public authorities, let us take a look at where the development plan of courts of the first and second instance 2020-2023 is placed in the world of strategy documents.

Pursuant to the version of the State Budget Act in force in 2017, the sectoral development plan should have been approved by the Government of the Republic, unless otherwise provided by law. The Courts Act does not regulate the strategic planning of courts or issues related to the sectoral development plan of courts. The development plan of the area of government should have been approved by the minister, but the Minister of Justice did not approve the development plan of courts of the first and second instance 2020-2023. Neither did the CAC. The process of preparing the development plan and discussions are reflected in the minutes of the 96th, 98th, 100th and 103rd meetings of the CAC.[15] In the latter, you can read the following: “The CAC discussed the development plan of courts of the first and second instance and agrees with the development trends described in the development plan and their submission for consideration in the ‘TERE’ programme of the Ministry of Justice and the process relating to the State Budget Act but does not formally approve the document. The Ministry of Justice submits individual questions, which are based on the development plan and are to be addressed, to the CAC for a decision.”[16]

When the development plan entered into force on 1 January 2020, a new version of the State Budget Act entered into force, which repealed the regulation concerning development plans in the area of government that are to be approved by the minister, and included only the regulation of sectoral development plans to be approved by the Government of the Republic. In my opinion, the development plan of courts of the first and second instance 2020-2023 did not meet the formal requirements of a development plan concerning a sector or area of government at the time of its creation or entry into force and was not included in the system of strategic development documents of the state in the sense of the State Budget Act.

However, as the CAC indicated in its decision, in practice, both the existence of the development plan and part of the development trends described therein were taken into consideration in the programme of the Ministry of Justice for 2023-2026. It identifies the general principles of legislative policy until 2030, the general principles of criminal policy until 2030 and the development plan of courts of the first and second instance 2020-2023 as strategic documents guiding the development of the rule of law performance area. The programme’s activity No. 5 ‘Ensuring the administration of justice, legal registers and legal services’ includes a number of the objectives of the development plan of courts 2020-2023 but far from everything that was not achieved during its period of validity.

The programme is updated annually and although budget requests related to courts that are submitted in the process under the State Budget Act have always been addressed and bills concerning courts have been discussed at the meetings of the CAC, there have been no discussions on the inclusion of the courses of action under the development plan in the programme of the Ministry of Justice. These choices have been left to the Ministry of Justice.

Now I come to the question of which conditions should be met for a new development plan covering the entire judicial system to be part of the state’s system of strategic development documents and whether this is absolutely necessary.

Discussions concerning the amendment of the court administration system have begun between the Ministry of Justice, heads of courts and the CAC, and the legislative intent to draft the relevant amendment to the law has been prepared. Although the discussion is still at a more general level at the time of writing this article and no decisions have been made on the system of administration, it is likely that there will be a significant amendment to the Courts Act with regard to the competence of the Minister of Justice and the CAC. The amendment also presumably concerns the financing of courts.

If even the competence of the parties to the administration of courts is broken down into bits at the level of the law, the strategic planning of the judicial system and its connection to the state budget process could also be regulated. Who initiates and approves the preparation of the development plan for the courts and what is the role of the court en banc? Must the measures, activities and funding plan necessary for the implementation of the development plan of the courts be presented in the programme of the Ministry of Justice? If the achievement of the objective of the development plan of the courts requires action both in lower courts and in the Supreme Court, will the Government of the Republic have to decide on budget issues related to both the programme of the Ministry of Justice and the Supreme Court at the same time?

If the Courts Act is not amended, the new development plan of the courts will remain a sectoral document and will not be a strategy document of the sate within the meaning of the State Budget Act. The courses of action related to the achievement of the objectives of the development plan of the courts would be included in the programme of the Ministry of Justice at the choice of the Minister of Justice, and they are presumably primarily guided by the action programme of the Government of the Republic.

However, by thinking strategically and wisely when preparing the development plan of the courts, it is possible to increase its importance in relation to the state budget even if the amendment of laws is delayed. Laws may be amended to ensure that the development plan of the courts is formally included in the state’s system of strategic documents. However, in my opinion, it is even more effective if the courts’ development plan essentially takes into consideration the objectives of the strategy documents of the state and supports the relevant ones. For example, the implementation of the strategic objectives of the courts can contribute to the achievement of the following objectives of ‘Estonia 2035’:

• Estonia’s economy is strong, innovative, and responsible
• Estonia is an innovative, reliable, and people-centred country

Moving downward in the hierarchy of the state’s strategy documents, we come to the general principles of policy and sectoral development plans. The courts’ efforts are directly needed in the implementation of the general principles of criminal policy until 2030[17]. In the Internal Security Development Plan 2020-2030,[18] for instance, the implementation of a return policy that respects fundamental rights and the increase in the capacity to identify and confiscate criminal proceeds concern the judicial system. The Youth Development Plan 2021-2035[19] aims, among other things, to consistently protect young people’s rights. According to the Welfare Development Plan 2023-2030,[20] the capacity of state institutions must be increased in order to provide rapid and effective assistance to people in the event of a violation of the principles of equal treatment and gender equality. No one doubts that an effectively functioning judicial system is necessary for society to function, but it must be shown how the courts can more specifically support the development of other areas with their own development.

In conclusion, I believe that it would be beneficial for the state as a whole, but also for the courts themselves, to take into consideration and highlight the objectives of other strategy documents of the state when setting their own development goals. This would increase the importance of the development plan and the funding required for its implementation.

A separate regulation must be provided for placing the development plan of the courts in the hierarchy of strategy documents of the state because it is unthinkable that the development plan of the judicial system would be approved by the Government of the Republic. However, both the Government of the Republic and the Riigikogu could examine the development plan of the courts and give their opinion on it before it approval. This will be especially worthwhile if the composition of the CAC is changed so that the members of the Riigikogu are excluded from the CAC in the future, as has been voiced in the discussions about the renewal of the model of court administration. By examining the draft development plan, the other branches of power would be able to find out the needs and development trends of the courts. This would increase the likelihood that they are taken into consideration both in the financing of the sector and in legislation.

A side story. Strategic planning

Above, I showed that authorities have also adopted strategy documents without being obliged to do so by the State Budget Act or any other law, or without it being required for the purposes of state budget funding. Below, using theoretical sources, I will explain what kind of benefits organisations can derive from strategic planning and what supports the implementation of the strategy. When choosing sources, I preferred research articles and books about the public sector so that it would be easier to place what I have read into the context of the courts.

The simplest definition of strategic planning is provided by Allison and Kaye in a handbook published in 2011, where it is referred to as a management tool by means of which an organisation agrees on the priorities that are necessary to accomplish its mission and meet the needs of the environment. Strategic planning is a process of making choices[21] that allows an organisation to allocate resources to achieve its priorities and make its members work towards the same goals.

According to the definition of the renowned public administration scholar, Professor John M. Bryson of the University of Minnesota, it is through strategic planning that an organisation defines what it is (its identity), what it does (its strategies and activities) and why it does it (mandate, mission, goals). Strategic planning encompasses a set of concepts, procedures, tools and practices designed to help people and organisations clarify their actions, their causes, and their ways of performing them. The implementation of the strategy is a continuous effort for the realisation of the organisation’s mission and objectives, constant learning and the creation of value for society[22].

Strategic planning and the resulting management of the organisation means that when it comes to analysis, decision-making and taking action, the aim is to answer the following questions:

1) Where the organisation should be headed (objectives)

2) How the organisation gets there (strategy for action)

3) How to know that the desired place has been reached (evaluation)[23] 

It follows from the above that every organisation should engage in strategic planning in order to understand the way it functions and use resources wisely. Empirical studies also confirm that there is a positive link between planning and the performance of a public organisation: public sector organisations that set clear objectives and performance indicators achieve better results.[24]

When an organisation faces changes, strategic planning becomes a necessity. Sergio Fernandez and Hal G. Rainey have found that simply convincing members of an organisation that change is needed is not enough to actually implement the change. The new idea must be turned into a strategy with goals and a plan to achieve them. It provides a direction in terms of how to achieve the desired results, identify obstacles and find ways to overcome them.[25] Without strategic planning, there is a risk that the implementation of the change will break down into separate and confusing guidelines and courses of action. Aimless and simultaneous but unconnected areas of activity in an organisation waste resources, do not allow for the retrospective assessment of the impact of what has happened and do not make it possible to learn from what has been done.

The benefits of strategic planning in the public sector have been extensively researched. It has been found that strategic planning and the implementation of the plan:

• strengthen strategic thinking, action and learning in the organisation;
• support better decisions as they relate to the organisation’s objectives and future;
• improve the organisation’s performance and sustainability;
• enhance cooperation in solving societal problems;
• increase the legitimacy of the organisation, as it is better able to fulfil its role in society and create value at a reasonable cost;
• provide direct benefits to the members of the organisation (increase motivation and satisfaction, strengthen competence, provide perspective and reduce anxiety).[26]

At the same time, not all public sector organisations are successful in their activities, even if they are engaged in strategic planning. Professor Theodore H. Poister, who has studied the subject for decades, finds that the public sector must avoid the exact takeover of private sector experience, in particular excessive technicality and reliance on quantitative data, otherwise the strategy will not be successful. He believes that the analysis of the field must be based on extensive research, including ‘soft’ data.

When leaders begin to formulate a strategy, it is helpful for them to draw on their experience, intuition and inspiration and assess, among other things, whether the goals are politically feasible. Such an approach requires open communication with the organisation’s members and partners. Needs, opportunities and courses of action must be discussed together. According to Poister, the strategies thus prepared have better prospects of being successful, i.e. if the strategy is skilfully implemented, the organisation will move in the desired direction.[27]

Implementation of the strategy

The strategy is implemented with the support of strategic management. Strategic planning and strategic management are closely linked, but their emphasis differs. When planning, the framework and guidelines are set on the basis of the best current knowledge, but management involves the effective implementation of the strategy, encouraging the members of the organisation to think, learn and act strategically and creating the right conditions for this.[28] When implementing the strategy, one operates within the framework defined in the strategy, i.e. the mission, mandate and objectives, while being open to learning something new, which may in turn affect the framework.

The strategic planning process is therefore endless. Since it must meet the needs of a changing environment, it may never stop – it is simply in different stages at different times and its cycles vary in intensity.

It is up to each organisation to choose the appropriate time for planning and reassessing its strategy. Usually, a long-term strategic plan is approved, which is reviewed annually along with the implementation of the action plan in order to assess the progress made towards the goals and any developments in the environment and make changes, where necessary. In order to respond to changes in a timely manner, data on the organisation’s activities and the factors affecting them must be collected and analysed throughout the cycle. An evaluation and feedback system must be created between the establishment of the strategy and its implementation, and the preparation of a plan for the new period must be started well before the expiry of the long-term strategic plan[29].

Organisational values and expectations regarding leaders

Agreeing on the values of the organisation is an important part of preparing a development plan. Values are the basis for deciding how to act. They support the strategy and implementation of the goals of the organisation and determine its standard of conduct and quality expectations. Van Der Wal et al. have found that values reflect the most important thing for the organisation and its members, being more general than norms and rules. Values cannot be heard or seen; values are expressed in choices, attitudes and actions.[30] Based on years of research and experience as a management consultant, Lynda Gratton, Professor of Organisational Theory, says that the more similar the values of an organisation and its members are, the more effectively the organisation functions. In organisational culture, it is very important that the core values are carried and used by the majority of its members because when personal values do not coincide with those of the organisation, it is reflected in daily work and prevents the achievement of common goals[31].

One of the prerequisites for the successful functioning of an organisation is agreeing on and talking about values, both when recruiting new members and in all the training, development and day-to-day activities of the organisation. In order for most members to adhere to the values set by the organisation, it is necessary that managers also act on them and set an example in following them. In value-based management, leaders are guided by the organisation’s values and high ethical standards when setting organisational goals, solving problems and communicating with one other and external parties. The values agreed in the development plan therefore set expectations primarily with respect to managers. When recruiting and developing managers, it must be ensured that they adhere to the agreed values and understand that relying on them is essential for the success of the organisation.

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[1] https://www.kohus.ee/sites/default/files/dokumendid/Esimese_ja_teise_astme_kohtute_arengukava.pdf (26.02.2024).

[2] See details https://valitsus.ee/strateegia-eesti-2035-arengukavad-ja-planeering/strateegia/aluspohimotted-ja-sihid#Riigivalitsemine (26.02.2024).

[3] What is the Tree of Truth? – https://tamm.stat.ee/?lang=en (26.02.2024).

[4] General principles of policy in force. – https://valitsus.ee/strateegia-eesti-2035-arengukavad-ja-planeering/arengukavad/poliitika-pohialused (26.02.2024).

[5] https://www.just.ee/kuritegevus-ja-selle-ennetus/kriminaalpoliitika-pohialused (26.02.2024).

[6] https://www.just.ee/oigusloome-arendamine/oiguspoliitika-pohialused-aastani-2030-0 (26.02.2024).

[7] Valdkonna arengukava ja programmi koostamise, elluviimise, aruandluse, hindamise ja muutmise kord (Procedure for the preparation, implementation, reporting, evaluation and amendment of the sectoral development plan and programme). – RT I, 23.12.2019, 5.

[8] https://valitsus.ee/strateegia-eesti-2035-arengukavad-ja-planeering/arengukavad/kehtivad-arengukavad (04.03.2024).

[9] https://www.just.ee/strateegilised-alusdokumendid (04.03.2024).

[10] https://www.eestipank.ee/en/about-us/eesti-pank-strategy (04.03.2024).

[11] https://www.riigikontroll.ee/Riigikontrollkuiasutus/Strateegia/tabid/140/language/en-US/Default.aspx (04.03.2024).

[12] https://www.ria.ee/en/authority-news-and-contact/authority-and-management/ria-strategy (04.03.2024).

[13] https://www.politsei.ee/et/ppa-strateegia-maailma-parima-politsei (04.03.2024).

[14] https://www.siseministeerium.ee/stak2030#programm-arengukava (04.03.2024).

[15] Available at https://www.kohus.ee/dokumendid-ja-vormid/kohtute-haldamise-noukoda (04.03.2024).

[16] https://www.kohus.ee/sites/default/files/dokumendid/103._protokoll_07.12.2018.pdf (04.03.2024).

[17] https://valitsus.ee/media/3772/download (04.03.2024).

[18] https://www.siseministeerium.ee/stak2030 (04.03.2024).

[19] https://valitsus.ee/strateegia-eesti-2035-arengukavad-ja-planeering/arengukavad/kehtivad-arengukavad (04.03.2024).

[20] https://www.sm.ee/heaolu-arengukava-2023-2030#heaolu-arengukava-20 (04.03.2024).

[21] M. Allison, J. Kaye. Strategic planning for nonprofit organizations: A practical guide and workbook. John Wiley & Sons, 2011.

[22] J. M. Bryson (2010). The future of public and nonprofit strategic planning in the United States. – Public administration review No. 70, pp. 255-267.

[23] S. Maleka (2014). Strategy management and strategic planning process. DTPS strategic planning & monitoring, 1(1), 1-29.

[24] G. A. Boyne (2010). Strategic planning. Public service improvement: Theories and evidence, 60-77.

[25] S. Fernandez & H. G. Rainey (2017). Managing successful organizational change in the public sector. In Debating public administration (pp. 7-26). Routledge.

[26] J. M. Bryson (2010). The future of public and nonprofit strategic planning in the United States. – Public administration review, 70, 255-267.

[27] T. H. Poister (2010). The future of strategic planning in the public sector: Linking strategic management and performance. – Public administration review, 70, 246-254.

[28] Ibid.

[29] M. Allison & J. Kaye (2011). Strategic planning for nonprofit organizations: A practical guide and workbook. John Wiley & Sons.

[30] Z. Van Der Wal, G. De Graaf, K. Lasthuizen (2008). What’s valued most? Similarities and differences between the organizational values of the public and private sector. – Public Administration, Vol. 86, No. 2, 465-482.

[31] L. Gratton (2000). Elav strateegia: Inimesed ettevõtte südames. Tallinn: Kirjastus Pegasus (2004); S. Sai Manohar, S. Pandit (2014). Core Values and Beliefs: A Study of Leading Innovative Organizations. – Journal of Business Ethics, Vol. 125, No. 4, 667-680.

[32] Molière “The Miser”, translated by Charles Heron Wall. The Project Gutenberg eBook available at https://www.gutenberg.org/files/6923/6923-h/6923-h.htm.