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Disciplinary proceedings against judges: international standards and practice in Estonia

Oliver Kask
Justice of the Supreme Court

Introduction

In recent years, disciplinary proceedings against judges have become increasingly common. Whether this is because there is a widespread burnout among judges, mistakes when recruiting judges have become more frequent or whether it is just a coincidence, the author doesn’t know. What levers should be pulled to sanction judges and, if necessary, remove them from office is a topic to which there are different approaches. This article seeks to answer the question of the purpose of disciplinary sanctions of judges and the procedure required by the Constitution and international law.

The first sentence of subsection 147(1) of the Constitution of the Republic of Estonia (Constitution) states that judges are appointed for life. The lifetime appointment of a judge is one of the most central guarantees of a judge’s independence, which gives the judge confidence that as long as they administer justice solely based on the Constitution and laws consistent with it and on their own conscience, it cannot result in the loss of their position, even if the decision made is not to the liking of the legislative authority, the executive power, interested parties or the public. Without a lifetime guarantee, a judge could be much more susceptible to external pressure, which would significantly damage the trust in the administration of justice and the rule of law.[1] Creating the possibility of releasing a judge from office poses a risk to the judges’ independence, as the threat of dismissal may influence judges to make decisions that comply with the wishes of the politicians in power. The lifetime appointment of a judge is one of the principles widely known in Estonian society.

However, this principle is not absolute – the second sentence of subsection 147(1) of the Constitution stipulates that the grounds and procedure for release of judges from office are provided by law. Thus, the Constitution allows us to “get rid of” judges also before their death. However, appointing judges for life or for a very long time means that it must be ensured that the position is not abused. The purpose of the Constitution is, among other things, to make sure that judges behave as appropriate for administrators of justice while in office and that the administration of justice functions well.

The principle of lifetime appointment is not absolute elsewhere either. For example, the Constitution of the United States[2] provides that a judge cannot be released from office if their behaviour is good (“The judges […] shall hold their office during good behavior”), but allows the executive power to release a judge from office upon the proposal of Parliament. Naturally, in many countries, the termination of a judge’s office is based on their conviction for a crime, but this does not help remove those judges from office who, although generally behaving in a law-abiding manner, are unethical, careless or lazy in their work. Among other measures, vetting, where the suitability of all judges in office is assessed, could also be considered. However, this measure is intended to solve only broad issues affecting the whole judiciary, which perhaps has to do with judges having been appointed based on political preferences, or with a high level of corruption that harms the whole country and society. This measure is not fitting for judges’ regular suitability assessments or for responding to misconduct in the service.

Impeachment, which is mostly understood as the removal of a public official from office by a political power due to their inappropriate behaviour, is especially common in Latin America, but is also provided for in the United States, Canada and Lithuania. Thus, the parliament or, upon its proposal, the executive branch may remove a judge from office. In the United States, such regulations have recently raised doubts about whether judicial independence continues to be guaranteed.[3] In Canada, the constitution has provided for such a possibility since 1867, allowing the Minister of Justice to release a judge from office upon the Parliament’s proposal after an investigation by the Judicial Council. In practice, however, no judge has ever been dismissed from office. Just the possibility of being subjected to such proceedings has ensured that judges carry out their duties honestly and diligently. In Latin American countries, dismissal of judges in this way is more common.[4]

Finding a good and balanced solution may be difficult and requires foresight from the legislative authority.

In 1996, writing about the judicial system in a democratic rule of law, Niels von Redecker explained that a distinction must be made between oversight of service and disciplinary proceedings. Oversight stays within the limits of reprimands and admonitions, while disciplinary proceedings allow for release from service or withholding of a part of the salary.[5] In his opinion, disciplinary sanctions may only be imposed by a disciplinary court. This article examines the substantive grounds and procedural requirements for imposing disciplinary sanctions in the meaning as provided for in the Courts Act (CA).

So far, the discussions have highlighted several problems in the conduct of disciplinary proceedings. The shortcomings include the fact that many complaints are filed against judges and processing them and deciding whether to initiate disciplinary proceedings is labour-intensive and requires more resources than are currently available, it is emotionally difficult for chief judges of courts to initiate disciplinary proceedings against judges and the limits of disciplinary proceedings are unclear.[6]

International standards on the disciplinary liability of judges

Since the issue of disciplinary liability of judges is extremely important from the point of the functioning of the rule of law – in several countries, the subjugation of courts has taken place by creating the possibility of removal from office – international organisations advocating for the protection of the rule of law and fundamental rights have developed many standards and recommendations on this subject. It is not possible to list them all in one article as there are so many of them.

The conventions do not explicitly set requirements for the disciplinary procedure of judges – this issue is addressed most specifically in Article 11 of the United Nations Convention against Corruption, which, however, does not provide details – but the right to a fair and independent administration of justice (Article 14 of the International Covenant on Civil and Political Rights and Article 6 of the European Convention on Human Rights (ECHR)) includes the requirement that it must not be possible to remove a judge from office arbitrarily. Thus, the European Court of Human Rights (ECtHR) has defined the substantive and procedural conditions of disciplinary liability in several decisions[7].

The United Nations Special Rapporteur on the Independence of Judges and Lawyers, appointed in 1994, dedicated their 2014 report to issues of judicial accountability.[8] In the 1985 Basic Principles on the Independence of the Judiciary[9], the United Nations requires that any accusation or complaint made against a judge during their judicial or professional tenure must be dealt with promptly and fairly in an appropriate proceeding. The judge has the right to a fair hearing. The examination of a case at its initial stage is confidential unless the judge requests otherwise. A judge may be removed from office or discharged solely on the grounds of incapacity to work or behaviour that makes them unsuitable to perform their duties. The code of conduct for judges must be the basis for this. If a higher court or legislative authority has not made the decision, it must be ensured that there is a possibility of appealing a decision made in disciplinary proceedings to an independent body. The Bangalore Principles, approved by a United Nations resolution, provide for similar requirements.[10]

Similar conditions are also provided for in the European Charter on the Statute for Judges, developed under the auspices of the Council of Europe.[11] The Consultative Council of European Judges (CCJE) has also been involved in defining the conditions for the disciplinary liability of judges, setting out the most general requirements in the Magna Carta.[12]

The European Network of Councils for the Judiciary (ENCJ) has prepared a report on minimum standards for the disciplinary liability of judges in Europe.[13] The report aims to strike a balance between judicial liability and judicial independence and to maintain public confidence in the judicial system. The report finds that disciplinary liability must ensure that judges comply with their professional duties while protecting their independence from political or other influences. The ENCJ report stresses that judges should not be disciplined for their legal decisions unless the alleged act was committed with malice or gross negligence.

The Venice Commission Rule of Law Checklist,[14] one of the Commission’s most important documents, assesses the system of disciplinary liability for judges depending on the answers to the following questions:

Are grounds for removal limited to serious violations of disciplinary or criminal provisions established by law, or where the judge can no longer perform judicial functions?
Is the applicable procedure clearly prescribed in law?
Are there legal remedies for the individual judge against a dismissal decision?
Are the grounds for disciplinary penalty clearly defined and are sanctions limited to intentional offences and gross negligence?
Is an independent body in charge of such procedures?
Is this body not comprised only of judges?

The Commission has expressed the position that the rule of law in disciplinary proceedings for judges must comply with certain fundamental principles: liability can follow a breach of an obligation expressly defined in law; fair proceedings must be ensured with full hearing of the parties and the judge’s right to use the assistance of a representative; the law must define the scope of sanctions; the principle of proportionality must be observed when imposing sanctions; the right of appeal must be ensured.

Disciplinary requirements and definition of violation

International standards

The Committee of Ministers of the Council of Europe finds in its Recommendation to member states on judges[15] that when a judge interprets the law, assesses the facts and weighs the evidence to determine cases, this should not give rise to civil or disciplinary liability, except in cases of malice and gross negligence on the part of the judge (section 66). The same actions could give rise to criminal liability only in cases of malice on the part of the judge (section 68). Disciplinary proceedings are permissible if a judge fails to carry out their duties in an efficient and proper manner (section 69).

The Venice Commission has explained that the organisation of the system of judicial discipline varies greatly across countries with regard to whether the grounds for disciplinary liability are defined in law in general terms or whether an all-inclusive list of disciplinary violations is provided.[16] However, it is considered important that the grounds for disciplinary offences are listed in the law clearly, narrowly and exhaustively. In the Commission’s opinion, the grounds for disciplinary liability are too broad if disciplinary sanctions can be imposed on very general grounds such as a violation “affecting the functioning of the court”.[17] Vague definitions of violations, such as the “breach of oath” or “unethical behaviour,” increase the risk of their overbroad interpretation and abuse, which may be dangerous for the independence of the judges. This is why the Venice Commission has always been in favour of a more specific definition of disciplinary offences in the legislation. When imposing a penalty for a violation of judicial ethics, the law must describe in sufficient detail the actions a judge can be punished for. The Code of Ethics may serve as a supplementary tool of interpretation of the law, but the Code of Ethics must not be the only instrument regulating the disciplinary liability of a judge.[18] The law allows for the provision of a violation of judicial ethics as a basis for disciplinary liability, but in such a case, it is recommended to list at least the most common violations in more detail in the law.[19] The Commission believes that repeated breaches of discipline, professional incompetence and immoral acts are too general grounds for punishment and may give rise to abuse.[20] However, it has been considered permissible to sanction a judge for making court decisions that clearly and consistently disregard existing case law, the wrongfulness of which is obvious to a person with legal knowledge, as well as for inappropriate behaviour in public if it damages the image of the courts.[21]

The opinions of the Venice Commission also conclude that, since disciplinary liability is similar to that under criminal law, the criminal law principle of foreseeability must also be applied in disciplinary proceedings mutatis mutandis and the grounds for liability defined in the law must be narrowly interpreted.[22]

The CCJE has taken an even more specific position in its Opinion No. 27(2024) of 6 December 2024[23]. It recommends that the grounds for disciplinary liability of judges must be intrinsically linked to the constitutional role of judges. This includes the need to ensure that judges act as independent and impartial arbiters, respecting the rule of law, and that they generally contribute to the proper administration of justice (section 11). Limits should be set to delimit misconduct from other forms of misbehaviour that may justify disciplinary sanctions (section 13). A clear distinction should be made between ethical standards and misconduct that justifies disciplinary sanctions (section 30).

Estonian law and practice

Subsection 87(2) of the CA provides that a disciplinary offence is a wrongful act of a judge which consists in failure to perform or inappropriate performance of official duties. An indecent act of a judge is also a disciplinary offence. According to subsection 88(4) of the CA, upon imposition of a disciplinary penalty, the nature, gravity and consequences of the disciplinary offence as well as the personal characteristics of the judge and other circumstances related to the offence must be considered.

In practice, inappropriate performance of official duties have been considered to include failure to allow a party to the proceedings to answer the court’s questions, violating the obligation to give the party to the proceedings the opportunity to provide explanations to the court and provide justifications for all issues arising during the hearing of the case[24], and disrespectful and rude communication with a party to the proceedings during the hearing.[25] Such an act has also been considered to be adjudicating a case beyond a reasonable procedural time, exceeding the deadline for publicly announcing a decision provided for by law, failing to respond to inquiries from parties to the proceedings or delaying the response, as well as delaying the adjudication of a case (including failure to adjudicate it by the time a disciplinary penalty is imposed).[26] When identifying a violation, the Supreme Court en banc considered it appropriate to assess the judge’s performance in comparison to other judges.[27]

A disciplinary penalty has also been imposed on a judge for refusing to meet with the chief judge of the court (violation of subsection 45(1) of the CA).[28] Regarding this violation, the Supreme Court en banc explained that the privilege against self-incrimination only extends to offences within the meaning of Estonian penal law, the Constitution and Article 6 of the ECHR. If, during the meeting, a judge is asked to answer questions that may incriminate them in any such act, they have the right not to answer the question (Supreme Court Criminal Chamber decision no 1-20-1578/58, s 25). The oversight exercised by the chief judge is not a violation of the judge’s independence, because the chief judge does not oversee the substantive aspect of the administration of justice, but rather the organisation of the work of the judge. The primary purpose of such meetings should be to look for ways to work together to resolve organisational issues outside of disciplinary proceedings.[29] If the purpose of the meeting is solely to gather evidence for disciplinary proceedings, refusal to meet cannot be considered an act that entails disciplinary penalty due to the privilege against self-incrimination.[30]

Humiliating and insulting parties to proceedings with unnecessary and irrelevant questions, comments and remarks expressed in inappropriate language or a raised tone of voice and an unreasonable attacking manner of speech has been considered an indecent act of a judge.[31]

At the disciplinary proceedings roundtable in February 2024, it was expressed that a judge’s excessive thoroughness, including the inability to distinguish between the important and the unimportant and constant entanglement in small details, if this is accompanied by a significantly longer than average time spent on court proceeding and an accumulation of cases, may give the chief judge of the court grounds to take measures against the judge and to exercise service oversight as prescribed in the CA. If a judge is accused of such a violation, the chief judge of the court cannot be accused of violating the judge’s independence.

Conclusions

The Supreme Court en banc has considered some violations (eight and a half months of inaction in adjudicating a case) to be on the borderline.[32] This, as in any other legal area, is inevitable. There would be a need to interpret the legal provision even if the most detailed lists were provided by law. The subsumption difficulties that arise when implementing the norm must be overcome by the competent body that resolves disciplinary disputes. Estonian law is very general in defining the grounds for a judge’s disciplinary liability and the number of borderline cases is therefore inevitably large. If the recommendation to provide an exhaustive list of disciplinary offences for judges in the law is followed, problems may arise if the list proves to be insufficient. However, the grounds set out in the CA are difficult to predict in a situation where there is no existing Disciplinary Chamber practice regarding similar acts. Even if, considering the composition of the Disciplinary Chamber, political pressure on judges through disciplinary sanctions can be ruled out, disciplinary offences should be defined in more detail in the law to better ensure the principle of judge’s appointment for life.

How a violation of a judge’s ethical requirements is related to disciplinary liability is one of the most significant concerns. The CA does not explicitly require high-minded and ethical behaviour or morality from a judge, although a person without high moral character may not be appointed as a judge (CA, section 47). The only reference to the obligation of a judge in office to behave decently stems from the regulation of disciplinary liability (second sentence of subsection 87(2) of the CA). The legislative authority should be clearer and more demanding in this regard, as the task of the court is not only to understand written law well and apply it correctly in adjudicating a specific dispute, but also to ensure, with its authority, including the ethical and moral behaviour of judges, that society recognises, trusts and is willing to comply with court decisions. Deriving a judge’s obligation from the Code of Ethics would not be in line with international recommendations to adopt narrow interpretation to the norms providing for disciplinary liability.

Choice of disciplinary penalty

According to all international recommendations, as well as the case law of the ECtHR and the European Court of Justice, it is important that the disciplinary penalty applied to a judge is proportionate.[33] More severe penalties, such as salary reduction or removal from office, may only be applied for particularly serious violations. In various countries, penalties include warnings, reprimands, salary reductions, temporary suspension from office, removing a case from a judge,[34] assigning a judge to different tasks and removal from office.

According to the recommendations of the Venice Commission, only deliberate abuse of judicial power or repeated and serious negligence should lead to disciplinary penalty; the disciplinary system should apply more lenient measures for minor violations. Removal of a judge from office should only be intended in the most serious or repeated cases and may also apply to behaviour that makes judges unfit to perform their duties.[35] The CCJE considered in their Opinion No. 27 (2024) that disciplinary sanctions must be clearly defined in law and enumerated in an exhaustive list. Any disciplinary sanction must be proportionate. The dismissal of a judge should only be ordered as a last resort in exceptionally serious cases (section 40 of the opinion). In all cases, the potential “chilling effect” that a certain sanction may have on the individual judge and on other judges must be considered when assessing the adequate sanction (section 42). The CCJE advocates against reduction of salary as a disciplinary sanction because judges must be remunerated equally for like work (section 40 of the same opinion).

Estonian law complies with these recommendations. Subsection 88(4) of the CA provides that upon imposition of a disciplinary sanction, the nature, gravity and consequences of the disciplinary offence as well as the personal characteristics of the judge and other circumstances related to the offence must be considered. In practice, the dismissal of a judge has been the first sanction applied only in very exceptional cases, where the violation has been very serious or other mechanisms to improve the judge’s performance have not worked for a long time.

Disciplinary proceedings

International standards

According to the recommendations of international institutions (CCJE, Venice Commission, ENCJ), the following principles must be considered in disciplinary proceedings:

1) the judge has the right to a fair trial, including the right to present evidence and to be heard;
2) the judge has the right to use a representative in the proceedings;
3) the investigation must be carried out by an impartial and non-political body;
4) the investigation must be conducted and the sanction must be imposed by different bodies;
5) the decision to impose a sanction must be justified;
6) decisions regarding imposing a sanction and their justifications must generally be available to the public.

The CCJE Opinion No. 24 (2024) also finds that, in the event of a clearly unreasonable length of disciplinary proceedings, the judge must have the right to demand their termination without the imposition of a sanction (section 37).

Regarding the organisational solutions for disciplinary proceedings, the CCJE considers as problematic primarily the solutions where the investigation is carried out by a prosecutor, the decision on imposing a disciplinary penalty is made by the body that conducted the investigation, or where the members of the disciplinary committee are appointed by a minister or other political institution. The Venice Commission also considers it to be a problem when the disciplinary committee itself carries out the investigation, while imposing the penalty as well. In this regard, the Venice Commission stresses that the independence of a judge does not only mean the independence of the judicial system from other branches of power, but also has an internal aspect. Every judge, regardless of position, has equal judicial power and must therefore be independent of other judges, the chief justice of their court or the chief justices of higher courts, among other things.[36] It has been considered that a possible solution could be the formation of a committee consisting of judges who would give their opinion on the matter before another competent body imposes a disciplinary penalty.[37] On several occasions, the Venice Commission has criticised regulations where the Minister of Justice, among others, has the right to initiate disciplinary proceedings, finding that in this case the independence of the judiciary is questionable. However, this solution has been considered acceptable if the judiciary itself has the right to initiate disciplinary proceedings and the minister has no say or decision-making power in imposing disciplinary sanctions.[38] The Venice Commission has recommended that the chief justice of a court should not have the right to initiate disciplinary proceedings against judges of the court they head[39] and that only the disciplinary chamber should have the right to initiate disciplinary proceedings, while the other persons should only have the right to inform the chamber of problems.[40]

In any case, the majority of the members of the committee determining the sanctions must be judges. How the judges are appointed is also important.[41]

In the de Carvalho e Sá v Portugal case, the ECtHR considered it important that a disciplinary penalty should be determined at an oral discussion in which the judge or their representative could participate (section 210 of the decision). This can be refused only as an exception.

Estonian law

The Supreme Court en banc has considered the procedural rules provided for in the CA to be constitutional. The Supreme Court en banc noted that the fundamental right to proceedings and organisation (section 14 of the Constitution) as a procedural fundamental right, as well as the requirement of legal clarity (subsection 13(2) of the Constitution) can primarily ensure the realisation of substantive rights. The Constitution does not require that disciplinary proceedings against a judge be regulated by law in great detail without leaving the person conducting the proceedings any room to make decisions regarding the shaping of the proceedings. The Supreme Court en banc considered it sufficient that a chamber consisting of only judges decides on disciplinary sanctions and that procedural guarantees are provided for the judge whose penalty is being decided.[42]

Subsection 91(2) of the CA does not give the Disciplinary Chamber the right to initiate disciplinary charges. Even if the Chamber finds, during the process of collecting additional evidence, that the judge may have committed a disciplinary offence that is not mentioned in the charges, in the opinion of the Supreme Court en banc, it does not have the right to convict the judge of it. Therefore, despite the fact that the proceedings of the Chamber are investigative, the Chamber is bound by the description of the offence or offences set out in the disciplinary charges (subsection 92 (1(2)) of the CA).[43]

The Supreme Court stressed that to ensure fair and just proceedings and the applicant’s right to a defence, a judge accused of a disciplinary offence must have the opportunity to present their position on the evidence under investigation.[44] Subsection 92(3) of the CA provides that a judge is served the disciplinary charges at least ten days before the hearing of the Disciplinary Chamber.

Subsection 91(3) of the CA provides for the right of a person instituting disciplinary proceedings to collect evidence and demand explanations that are necessary to adjudicate the disciplinary case. The evidence must also be included in the disciplinary charges (subsection 92 (1(3)) of the CA). Disciplinary proceedings are instituted by preparation of disciplinary charges (second sentence of subsection 91(1) of the CA), which is forwarded, together with the related material, to the Disciplinary Chamber, which in turn immediately notifies the relevant judge (subsection 92(2) of the CA). According to the Supreme Court en banc, the law does not restrict the right of the Disciplinary Chamber itself to collect evidence. Subsections 96(1) and (3) of the CA give the Disciplinary Chamber the right to summon witnesses and other persons to the hearing on its own initiative and to question them. The collection of additional evidence includes both incriminating and exculpatory evidence. If the Disciplinary Chamber collects additional evidence, the right of defence of the judge whose case is heard must be guaranteed (subsection 96 (3) and (4) of the CA).[45]

The Supreme Court en banc found in case no 3-24-2036 that, in essence, a disciplinary charge is a reasoned statement that initiates investigative proceedings before the Disciplinary Chamber. The above conclusion is further supported by the fact that, pursuant to subsection 96(1) of the CA, it is mandatory that only the judge whose disciplinary offence is being heard is summoned to the hearing of the Disciplinary Chamber; in the case of adversary proceedings, it should also be mandatory to summon the prosecutor. However, at the disciplinary proceedings roundtable, it was considered necessary that the prosecutor could also participate in the hearing of the Disciplinary Chamber.

Conclusions

Individual disputes with claims that the rights of defence and the right to object have not been sufficiently guaranteed provide no reason to believe that the proceedings before the Disciplinary Chamber do not respect the rights of the judge. Although in the previous practice of the Disciplinary Chamber, the alleged offences have not been differentiated from each other, the Supreme Court en banc has corrected these shortcomings in recent decisions. This should ensure that the Disciplinary Chamber assesses each alleged disciplinary offence separately and asks the judge for their opinion on each offence.

The Supreme Court en banc correctly noted in case no. 3-24-2036 that the procedure for disciplinary proceedings against a judge, including appeal proceedings, must ensure a fair and just trial and enable the judge to defend themselves. In disciplinary proceedings, it is not required for a judge to be granted all the same guarantees as those provided for suspects and defendants in the Code of Criminal Procedure (CCP). In February 2024, the disciplinary proceedings roundtable also found that disciplinary charges do not have to meet the requirements of an indictment set out in the CCP. It is important that it includes the content of the offence and the allegation against the judge, the evidence and the proposal for sanctions. This is also the case according to international standards, which consider this procedure to be an administrative procedure rather than a criminal procedure. The ECtHR has also clarified in numerous court cases that a judge’s disciplinary penalty is not a decision made in a criminal case within the meaning of Article 6 of the ECHR, but a decision on his or her civil rights.[46]

The difference between Estonian law and the recommendations of international institutions, or requirements in the case of the ECtHR, lies in the issue of how to institutionally separate the person who brings the charges, the person who collects evidence and the person who imposes disciplinary sanctions. In Estonia, the collection of evidence is the task of both the prosecutor and the Disciplinary Chamber, whereas European good practice requires that in disciplinary proceedings, the authority to collect evidence and impose sanctions lies with different institutions. In a situation where the Disciplinary Chamber consists only of judges, sanctions based on political motives are not possible, but it can be argued that this could create a risk of the judiciary becoming self-protective and consequently, if sanctions are not imposed, there could be a decline in trust in the judicial system.

However, an institutional solution is accompanied by the need to ensure the independence of the judge from other judges. The Disciplinary Chamber consists of five judges from each court instance, of which the judges of courts of first and second instances are elected by the court en banc of judges. However, pursuant to subsection 93(5) of the CA, a specific disciplinary case is adjudicated in the Disciplinary Chamber by the panel consisting of three justices of the Supreme Court, one Circuit Court judge and one judge of a court of first instance. The members of the panel that adjudicate a specific case are decided by the chair of the Disciplinary Chamber. Such a large concentration of disciplinary power at the Supreme Court, considering that the committee also operates at the Supreme Court (subsection 93(1) of the CA), may create distrust within the judicial system and create an overly subordinate relationship that is in contradiction with European standards, especially considering that the right to bring charges lies with chief justices of courts, among others.

Right of appeal and judicial review

The Magna Carta of Judges of CCJE, section 6 requires that disciplinary proceedings against judges take place before an independent body with the possibility of recourse before a court.

The ECtHR has stressed that disciplinary sanctions can have a significant impact on a judge’s life and career and that public confidence in the functioning and independence of the judicial system is at stake in disciplinary proceedings against a judge. These circumstances must be considered, among other things, when deciding on the scope and intensity of judicial review of the sanction decision.[47]

The European Court of Justice has stressed that the organisation of disciplinary proceedings must ensure that they cannot be used to politically influence judges. A significant guarantee for the protection of the independence of the judiciary is the existence of legal provisions that: determine the constituent elements of disciplinary offences and the applicable sanctions; provide that an independent body must be involved in the proceedings and that the rights recognised in Articles 47 and 48 of the EU Charter of Fundamental Rights (in particular the rights of the defence) must be fully guaranteed in the proceedings; and provide for the possibility of challenging the decision of the disciplinary body in court.[48]

Estonian law allows for an appeal against the decision of the Disciplinary Chamber to the Supreme Court en banc. The Supreme Court en banc can adjudicate the matter in proceedings where it is possible to collect and examine additional evidence and the judge subject to the proceedings has the right to use a representative.[49] Formally, the requirements of the right of appeal are thus ensured. It is questionable, however, whether the operation of the Disciplinary Chamber at the Supreme Court and the hearing of each case in the Disciplinary Chamber, which mainly consists of Supreme Court justices, ensures that the proceedings of the Supreme Court en banc not only are, but also appear to be independent and impartial.

Summary

The disciplinary liability of a judge is important to ensure that justice is administered according to high standards and that judges are accountable for the performance of their duties. However, the liability must be balanced with protecting the independence of the judge to avoid politicising the administration of justice or creating mechanisms of pressure. It is therefore important that disciplinary proceedings are transparent, proportionate and meet the requirements of a fair trial.

Estonian law does not comply with best practice or international recommendations primarily in terms of defining disciplinary offences and remains very abstract. The requirements placed on judges may arise from ethical norms, which are currently not sufficiently connected to disciplinary liability; the question of whether a judge can be held liable for disciplinary misconduct for every violation of a procedural norm is left to be formed by practice. Monitoring disciplinary proceedings initiated against colleagues should not be the only means of avoiding such uncertainty.

However, the rules of disciplinary proceedings are good: the judge charged is ensured all significant procedural guarantees, including the right to examine the charges, present objections and evidence to it, have a representative and participate in the Disciplinary Chamber meeting where the imposition of a penalty is discussed. The fact that chief judges have the right to bring charges in disciplinary cases is not in line with the recommendations of international institutions. In practice, this has also been considered problematic at the disciplinary proceedings roundtable in Estonia.

Whether the Disciplinary Chamber should include people from outside the judiciary may be a subject of future discussions. However, the current solution, where the majority of the members of the panel adjudicating the disciplinary case are from the Supreme Court, may give the impression that challenging the panel’s decision in the Supreme Court en banc is pointless. This problem is especially serious in a situation where the panel imposing the disciplinary penalty also carries out the investigation and collects evidence.

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[1] V. Saarmets. Comments on section 147 – Constitution of the Republic of Estonia. Annotated edition, 2020, comm. 7. – https://pohiseadus.ee/sisu/3631/paragrahv_147 (12.03.2025).
[2] The Constitution of the United States is available on the Senate’s website.
[3] C. Hulse. Musk and Republican Lawmakers Pressure Judges with Impeachment Threats. The New York Times. – https://www.nytimes.com/2025/03/01/us/politics/trump-musk-republicans-congress-judge-impeachment.html
[4] CDL-AD(2025)007, Opinion of the Venice Commission on the draft amendment of Article 99 of the Constitution concerning the impeachment of members of election management bodies in Peru, § 29.
[5] N. v. Redecker. Court organisation and division of power under democratic rule of law from German perspective. – Juridica 5/1996, pp. 216–218.
[6] Summary of the roundtable discussion held at the Supreme Court on 7 February 2024. Available on the court intranet. The roundtable was attended by the chief judges of the courts and the chairman of the Disciplinary Chamber.
[7] ECtHR decision Harabin v. Slovakia, (2013), s 132-133; Oleksandr Volkov v. Ukraine, (2013), s 199 and 205; Olujić v. Croatia, (2009), s 37–38.
[8] Report of the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, UN Doc. A/HRC/6/32 (28 April 2014).
[9] Basic Principles on the Independence of the Judiciary (Adopted by the 7th UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 Aug. to 6 Sept. 1985). –https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-independence-judiciary (06.04.2025).
[10] The Bangalore Principles are also available in Estonian on the website of the Supreme Court. – https://www.riigikohus.ee/et/kohtunike-omavalitsuskogud/kohtunike-eetikanoukogu (12.03.2025).
[11] European Charter on the Statute for Judges and Explanatory Memorandum, DAJ / DOC (98) 23 (8–10 July 1998). – https://rm.coe.int/090000168092934f (12.03.2025).
[12] Magna Carta of Judges (Fundamental Principles) –https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=090000168063e431 (06.04.2025).
[13] Minimum Judicial Standards V: Disciplinary proceedings and liability of judges. ENCJ Report 2014–2015. –https://www.encj.eu/images/stories/pdf/GA/Hague/encj_report_minimum_standards_v_adopted_ga_june_2015.pdf (06.04.2025).
[14] European Commission for Democracy through Law (Venice Commission) Rule of Law Checklist. – https://www.venice.coe.int/images/SITE%20IMAGES/Publications/Rule_of_Law_Check_List.pdf (06.04.2025).
[15] CM/Rec(2010)12 – Recommendation of the Committee of Ministers to member states on judges: independence, efficiency and responsibilities. – https://www.riigikohus.ee/sites/default/files/elfinder/dokumendid/cmrec_2010_12e_-_kohtunike_soltumatus_eesti_keeles.pdf (12.03.2025).
[16] CDL-AD(2014)018, Joint opinion of the Venice Commission and OSCE/ODIHR on the draft amendments to the legal framework on the disciplinary responsibility of judges in the Kyrgyz Republic, § 23.
[17] CDL-AD(2014)006, Joint opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law of the Council of Europe, and of the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) on the draft law on disciplinary liability of judges of the Republic of Moldova, §§ 19 and 35.
[18] CDL-AD(2016)013, Opinion on the Draft Code of Judicial Ethic of the Republic of Kazakhstan, §§ 24 and 27.
[19] CDL-AD(2017)018, Opinion on the Judicial System Act of Bulgaria, § 108.
[20] CDL(1995)074rev, Opinion on the Albanian law on the organisation of the judiciary (chapter VI of the Transitional Constitution of Albania), p. 4.
[21] CDL-AD(2018)033, Opinion on the draft law amending the law on Courts of “the former Yugoslav Republic of Macedonia”, § 59.
[22] CDL-AD(2014)039, Amicus Curiae Brief for the Constitutional Court of Moldova on certain provisions of the law on professional integrity testing, § 63.
[23] CCJE Opinion No. 27 (2024) on the disciplinary liability of judges. – https://rm.coe.int/opinion-no-27-2024-of-the-ccje/1680b2ca7f (21.03.2025). See also the following in the Yearbook of Estonian Courts 2024: M. Eerik. Euroopa Kohtunike Konsultatiivnõukogu tegevus 2024. aastal.
[24] Supreme Court en banc decision no. 9-13/17-2.
[25] Supreme Court en banc decision no. 3-24-2036/10, s 34.
[26] Supreme Court en banc decision no. 3-24-2036/10, s 29.
[27] Supreme Court en banc decision no. 3-24-2036/10, s 31.
[28] Supreme Court en banc decision no. 3-24-2036/10, s 35.
[29] Supreme Court en banc decision no. 3-24-2036/10, s 35.
[30] See Supreme Court Administrative Law Chamber decision no. 3-19-467/28, sections 5.2, 24–25 regarding disciplinary proceedings against a lawyer.
[31] Supreme Court en banc decision no. 9-13/17-2.
[32] Supreme Court en banc decision no. 3-24-2036/10, s 30.
[33] See e.g. ECtHR decision Albuquerque Fernandes v Portugal, 2021, s 75; ENCJ report on minimum standards applicable to disciplinary liability of judges in Europe, p 36; the Committee of Ministers of the Council of Europe Recommendation CM/Rec(2010)12, § 69; Venice Commission, CDL-AD(2007)009, Georgia, Opinion on the Law on Disciplinary Responsibility and Disciplinary Prosecution of Judges of Common Courts of Georgia, § 9.
[34] See e.g. the European Court decision C-647/21 – D.K. and C-648/21 – M.C. and M.F., s 83: “Similarly, the withdrawal from a judge of cases for which they are responsible, where the national legislation concerned does not lay down objective criteria governing such a possibility of withdrawal and, what is more, where that legislation does not require a decision to withdraw cases to include the reasons on which it is based, does not rule out the possibility that the withdrawal was arbitrary, or constitutes a disguised disciplinary penalty.”
[35] CDL-AD(2014)006, Joint opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law of the Council of Europe, and of the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) on the draft law on disciplinary liability of judges of the Republic of Moldova, §§ 41-42.
[36] CDL-AD(2022)050, Opinion on the draft amendments to the Law on the Judicial Council and Judges of Montenegro, § 68; CDL-AD(2010)004, Report on the Independence of the Judicial System Part I: The Independence of Judges, p. 71.
[37] CDL-AD(2003)012, Memorandum: Reform of the Judicial System in Bulgaria, § 15.
[38] CDL-AD(2019)024, Joint Opinion of the Venice Commission and the Directorate of Human Rights (DHR) of the Directorate General of Human Rights and Rule of Law (DGI), on the amendments to the Judicial Code and some other Laws of the Republic of Armenia, § 30.
[39] CDL-AD(2017)018, Opinion on the Judicial System Act of Bulgaria, § 113; CDL-AD(2017)033, Opinion on the Draft Law on the termination of the validity of the Law on the Council for establishment of facts and initiation of proceedings for determination of accountability for Judges, on Draft Law amending the Law on the Judicial Council, and on the Draft Law amending the Law on Witness protection of “The former Yugoslav Republic of Macedonia”, §§ 26 and 27; CDL-AD(2008)041, Opinion on the Draft Amendments to the Constitutional Law on the Supreme Court and Local Courts of Kyrgyzstan, § 17.
[40] CDL-AD(2023)011, Montenegro – Follow-up Opinion to the opinion on the draft amendments to the Law on the Judicial Council and Judges, §§ 30–31, CDL-AD(2022)050, Montenegro – Opinion on the draft amendments to the Law on the Judicial Council and Judges §§ 58, 68; CDL-AD(2014)032, Joint Opinion on the draft law on making changes to the law on disciplinary liability and disciplinary proceedings of judges of General Courts of Georgia, § 23.
[41] ECtHR decision Oleksandr Volkov v. Ukraine, 2013, s 109; Denisov v. Ukraine (GC), 2018, §§ 68–70; Catană v. Moldova, 2023, §§ 68 and 70.
[42] Supreme Court en banc decision no. 3-24-2036/10, s 12.
[43] Supreme Court en banc decision no. 3-24-2036/10, s 15.
[44] Supreme Court en banc decision no. 3-24-2036/10, s 25.
[45] Supreme Court en banc decision no. 3-24-2036/10, s 13.
[46] Article 6 of the ECHR regulates procedural guarantees when a decision is made on a person’s “civil rights and obligations or on any criminal charge against them”. Despite the fact that Article 6 of the ECtHR does not mention administrative law relations, its scope of application has nevertheless been extended to administrative law relations, with some exceptions (e.g. taxation). Disputes arising from employment relationships are subject to the protection of Article 6 of the ECHR.
[47] Decision of the Grand Chamber of the ECtHR in the case de Carvalho e Sá vs. Portugal, sections 119–128, 179, 196; decision in the case Eminağaoğlu vs. Turkey sections 64–80.
[48] ECJ C-791/19 – Commission vs. Poland, s 61.
[49] Supreme Court en banc decision 3-24-2036/10, s 14