Chairman of Harju County Court
Chairman of Tartu County Court
Chairman of Viru County Court
Chairman of Pärnu County Court
A court is a part of public authority whose essential function is to administer justice. The court is independent in administering justice.
Judicial independence is a constitutional value that encompasses both the independence of the judge as an individual and the independence of the court as an institution. At the same time, independence is not a privilege of a court or a judge, but a prerequisite for the proper performance of their constitutional functions.
The exercise of state power in court, i.e. the administration of justice, takes place on a daily basis through judicial institutions. The judicial institution is headed by the chairman of the court. Let’s start our look at administration issues at
I THE COURT LEVEL
What is the area of responsibility, role and actual possibilities of the chairman of the court in today’s legal situation? Are they sufficient to ensure the effective functioning of the judiciary and the independence of the court and each individual judge?
The competence and duties of the chairman of the court are primarily regulated by the Courts Act (sections 12, 20 and 24). The primary duty of the chairman of the court is to represent and manage the court within the limits of their competence. The Courts Act does not give a single answer to what the competence of the chairman of the court is, but it does specify the functions of the chairman and the area of responsibility: the chairman is responsible for the proper functioning of the administration of justice in the court.
At this point, the good practice of court management, which is part of the quality management system of the Estonian judicial system, approved at the 14 December 2012 session of the Council for Administration of Courts could be of help to the court chairman. This document helps to ensure the proper administration of justice.
Above all, ensuring the orderliness of the administration of justice means the responsibility of the chairman of the court to ensure that all cases received by the court are resolved in a high quality manner and within a reasonable time. In other words, the chairman is responsible for ensuring that individuals have access to justice and due process. In order to achieve this goal, the function of the chairman is to organize judges’ distribution of work and also the organization of work in the court in general. At this point, however, attention must be drawn to the selection of court chairmen as individuals – they are not born leaders and in many cases have no leadership experience at all. Court chairmen are elected from among the judges. Therefore, it is important to constantly address n the training of judges in leadership skills and to offer the corresponding development opportunities to as many as possible, in order to ensure that there are enough judges with the prior knowledge necessary for leadership, from among whom to choose court leaders. Another alternative is to monitor the availability of relevant experience already when recruiting judges. It would be beneficial for the quality of justice and court administration if judges were chosen from among jurists with as diverse and broad-based experience as possible. We believe that the newly adopted changes to the Courts Act, which introduce department heads, may be the first step in training suitable judges for leadership.
The task of organising the division of labour among judges within the court is relatively clear. The task of the chairman of the court is to ensure that the annual work division plan is based on the needs of the administration of justice in a specific court and actually ensures the distribution of work with the most even workload possible.
In organizing this division of labour, the workload methodology approved by the Council for Administration of Courts (the latest version was approved on 10 December 2020 after more than ten years of preparation) is a tool that helps the chairman of the court. It is true that the methodology has its shortcomings, but in general, it still allows measurement and comparison of the workload of judges handling different types of cases. This is primarily possible within the same court, but it is also possible to compare county courts with each other.
Supervision is also regulated with sufficient thoroughness. This gives the chairman the opportunity, without interfering with the administration of justice, to ensure that proceedings are carried out without undue delay and, if necessary, to take measures to resolve matters within a reasonable time.
However, it is not enough to organise and supervise the division of work of judges to ensure the proper functioning of the administration of justice. Necessary and sufficient resources for effective action are a prerequisite for the fulfilment of the functions before the court.
As the head of a judicial institution, the possibilities of the chairman of the court to manage resources are very limited, since the courts of first and second instance do not have substantive self-organisation rights. Judicial institutions do have their own budget (subsection 7 (2) of the Courts Act), but it is part of the state budget, and courts of first and second instance are financed from the budget of the Ministry of Justice.
The good practice of court administration describes the ideal: how the administration of various court resources should ideally work, in the current model of court management, and that includes funding for the courts. In courts’ budgeting, the chairman of the court should be the one who formulates the court’s budget priorities, approves the draft budget prepared by the court director based on the needs of the court’s work area, and participates in budget negotiations at the Ministry of Justice. Such an arrangement should give the chairman the opportunity to properly perform the chairman’s functions.
To date, a number of changes have taken place both in the structure and administration of the courts. Nationwide divisions within the structure of various courts have been created to deal with multiple areas. The administrative functions of the courts are concentrated in the hands of two court directors. However, the administration of the departments within the various courts is an area of responsibility of a separate court director. This means that one court director can be a cooperation partner for more than one chairman, while some chairmen have to coordinate their area of responsibility with several court directors. The purpose of the court directors’ work, which is to create conditions for the administration of justice and the work of the court’s structural units, has now expanded and is more than simply the performance of administrative functions within the court.
With this expansion in mind, we will continue our look at management in the topic of
II THE COURT SYSTEM LEVEL
In addition to the management of the court as an institution, we cannot overlook the wider management of the judicial system as one of the constitutional branches of power. According to Article 148 of the Constitution of the Republic of Estonia, the judicial system consists of:
- county and city courts (4) and administrative courts (2)
- circuit courts (2) and
- the Supreme Court.
In the opinion of the authors of this article, the consultation days of the heads of courts, which have been taking place since 1997, have become the closest form of cooperation between the nine institutions. Initially, this was a meeting of court directors organized by the Ministry of Justice, but since 2011 it has been a working format involving all court directors. The discussions, which last for a long working day, deal with cross-jurisdictional topics, i.e. topics that concern all courts. The agenda of the discussions is prepared weeks in advance, and everyone concerned participates in putting it together: chairmen of courts of first and second instance, directors of courts and departments, and officials of the Ministry of Justice’s Courts Division and the undersecretary. Recently, the director of the Supreme Court has increasingly joined this discussion format, and the court system’s Head of Communications is also a regular guest at the consultation days, as the representative of the Supreme Court. Heads of divisions from across the court system also typically attend as guest speakers. From 2018, one of the courts’ chairmen usually chairs the consultation day and directs adherence to the schedule, doing so within one year (there are four consultation days per year).
Based on the experience so far, it can be stated at least at the level of the chairmen, that although there is no legal act governing the organisation of the consultation days, it has – at least in recent years – been the most productive and informative form of consensus-based court administration. Figuratively speaking, it is the antechamber of the council for the administration of the courts, because in general, all issues that have reached the Council for Administration of Courts have been previously discussed at the court leaders’ consultation day. Since the approval of the 2020 Council for Administration of Courts rules of procedure, the participation of court chairmen in Council for Administration of Courts sessions is mandatory. If we look at the agendas of the consultation days for the last two years, there is no topic so specific that it cannot be associated with the development plan of the courts (the development plan 2020-2023is currently valid, the first steps have been taken to develop a new one, see below). Although the courts may be quite different in terms of their (human) geography within the same court level, there are enough common topics where it makes sense to act in concert or at least cooperatively. An example is the organization of video hearings that emerged with COVID-19: the participants in the proceedings are in the working area of various courts, or the procedure for introducing files is harmonised between courtsAfter all, the ultimate goal should be that a person who goes to court receives the same quality service in both Narva and Kuressaare. Exchange of information with court directors and heads of divisions, who mostly operate across the country, but have subordinates in all courts, is also to be considered important. Implementing the good practice of one court in other places also contributes to improving the quality of the entire system. In summary, the regular consultation days fulfil in every way the functions specified in subsection 39 (4) of the Courts Act and are helpful to the chairmen of the courts, who – as already said before – are not born leaders, but are highly qualified jurists in shoes, of which at least one pair has “administrative function” written on them.
The highest level of administration of the judicial system is undoubtedly the Council for Administration of Courts. It must be noted that although the list of Council for Administration of Courts mandatory consents and opinions provided for by law (clause 41 (1) 1)-14) and clauses 41 (3) 1)-2) of the Courts Act) seems lengthy, the Council for Administration of Courts has mainly discussed so-called other issues at the initiative of the Chief Justice of the Supreme Court or the minister responsible for the field (clause 41 (3) 4)). At the same time, no one has raised a question about the Council’s opinions on these other issues; rather, these opinions have been considered very weighty. The best examples from the last few years are the approval of the system of load points, which was a protracted process, and the confirmation of the principles of distribution of financial resources allocated to the judicial system as a whole (for a one-time salary increase for officials).
With one generation of judges currently giving way to the next, the activity of the Supreme Court en banc on the appointment of new judges has a greater influence than expected (clause 30 (2) 2) of the Courts Act.) The opinion of the Supreme Court en banc about who is the best candidate (this opinion is presented to the Supreme Court by the chairman of the court) often does not necessarily match the final choice made by the Supreme Court en banc. At the same time, the current selections will define how our judicial system will look in 10-15 years, and the new court chairmen will probably come from those selected in recent years. Thus, it is an important question from both the point of view of each court and the entire judicial system. As a recent positive trend, it should be noted here that the chairmen of the courts have begun to be included in the Supreme Court en banc’s decision-making process and they are also allowed to defend the selection of the court itself. Moreover, even in the so-called recruitment process of judicial candidates, the Supreme Court has begun to give more importance to the role of court chairmen. For example, possible (regional) candidates have already been discussed with the chairmen during or before the announcement of the hiring round.
An impact on the judicial system as a whole undoubtedly also comes from the Ministry of Justice, the undersecretary for courts and the Department of Justice Administration Policy, especially its courts division. The head of the ministry – the minister – must also come up with initiatives and give confirmations (e.g. subsection 12 (1), clause 41 (3) 4), section 57 of the Courts Act etc.). From the point of view of the judiciary, the possibilities of the ministry as a government agency to interfere in our independence should not be underestimated, because the current Courts Act explicitly designates the Ministry of Justice as one of the administrators of the courts of first and second instance (subsection 39 (1) of the Courts Act). In connection with the cooperation with officials working in the so-called “superministry”, the fact that many employees of the Department of Justice Administration Policy have a background of working in the court cannot be considered unimportant. The ideas of the cross-court services (interpreters, archivists, ICT, information phone line – which are in fact likewise system management tools) originate from the ministry and their creation has fully justified itself.
The functioning of the judicial system has also been affected to varying degrees by the activities of the Estonian Association of Judges. The association is a considerable force, because some three-quarters of active judges are members. According to point 5 of the statute of the Association of Judges, the statutory objectives of the association include:
- support the independence of courts and judges;
- protect the personal, professional and socio-economic rights and legal interests of judges.
In order to fulfil these goals, the Association of Judges provides opinions on various drafts and initiatives concerning the courts (often much more comprehensively than the courts do through the mediation of the chairmen), as well as public comments on the work of judges or issues of judicial ethics. In the opinion of the authors of this article, perhaps too little attention has been paid to the activities of the Association of Judges in terms of the functioning of the judicial system, because its influence on the attitude of judges towards developments and changes is greater than one may think at first glance.
With such a multitude of influences (both at the level of the court and the judicial system), the question inevitably arises: what next?
III QUO VADIS, JUDICIAL ADMINISTRATION?
The courts’ development plan will come into effect this year, so it is the right time to evaluate the past period and set new goals. In doing so, the issue of the court administration model must be discussed.
The Council for Administration of Courts has already taken the position that a new development plan must be drawn up at the end of the period. Every organisation should have long-term goals and an action plan to adhere to when making day-to-day decisions.
A separate question is who should be in charge of drafting the development plan and who is responsible for monitoring its implementation. Until now, this role has been carried out by the Ministry of Justice, which previously performed almost all functions related to cross-judicial organisational issues. The Ministry of Justice also had the corresponding personnel resources. In recent years, there have been significant changes in the judicial system, during which a number of cross-court-system positions have been created, which have taken over some functions from the Ministry of Justice. As we mentioned above, cooperation between court directors has also improved, which is why the courts themselves have decided and resolved more general questions concerning the courts than they did in the past. In order to ensure the independence of the administration of justice, the initiative and input for the preparation of the court development plan ought to come primarily from within the judicial system. In order to prepare and implement such plans, it would be wise to strengthen the organisational capacity of the courts so that they could act more independently of the executive branch than previously. At present, the administrative staff of the courts is still too small to carry out the management function of the entire organisation by itself. Another hindering aspect is the lack of a cross-judicial view. Each court is an independent judicial institution, but a large part of the issues that need to be resolved are cross-judicial and require a holistic view.
Therefore, one of the goals of the development plan to be created should be to analyse the administration model of the courts and the planning and implementation of changes necessary to make it more effective (including the empowerment of independent management). The management model should be evaluated both on the basis of each court and the court system as a whole.
Increasing the management capacity of the judicial system is necessary to ensure the independence of the courts and the reliability of the administration of justice – in order for the judicial system to be able to make important decisions for the organisation and execute them. Experience shows that issues can be resolved more quickly and efficiently if there is one specific leader and person in charge. Therefore, the courts could take more responsibility for the development and management of the organisation than they did in the past. In today’s model of court administration, responsibility tends to be dispersed and finding solutions is therefore delayed.
As an example, let us consider the question of who should ensure that we have enough new young judges and court jurists, and ensure the development of the existing personnel based on changes in the legal space and society. The lack of new judges and jurists makes it more difficult every day to ensure the proper administration of justice in the courts, as the necessary personnel are not available and hiring rounds are unproductive. Considering the changes taking place in the labour market (decrease in people of working age, preference for different forms of employment, etc.  ), it is high time to review the working processes of the courts and make the necessary changes that would allow us to make do with fewer people and that would offer employment formats that people now prefer when choosing a job. Demographic trends in Estonia clearly show (especially in the case of Estonian citizens, who make up the pool from which we can choose people for the judicial system) a decrease in the number of people participating in the labour market, and there is no reason to hope for a change in this trend for Estonian citizens in the coming decades. At the same time, we do not foresee a decrease in the number of court disputes in the near future. The population is ageing, but healthy life expectancy is not increasing. Thus, there are more and more people in society who need the support of other people, including guardianship or involuntary medical treatment or other measures, the implementation of which is currently under the jurisdiction of the courts.
On the one hand, finding employees is the responsibility of each court, but on the other hand, the root causes of the problem are related to society and education policy in general, which is why each court acting alone cannot find solutions to them. The topic requires a systematic approach and leadership. Unfortunately, no one seems ready to step into this role at the moment. There are other similar concerns.
Court hardware and software could be mentioned as another important field. Procurement, development and maintenance of such systems are today the responsibility of the Centre for Registers and Information Systems and the State Information and Communication Technology Centre, and the customer is either the Ministry of Justice or each court separately for certain hardware. In this area as well, a concern is the lack of a single smart customer who has the appropriate training, money and competence to make decisions on what direction the court information system and other used software solutions (e.g. translation software, transcription, automation of publishing court decisions) and hardware should develop. Due to the fragmentation of the clients and implementers, these processes tend to get bogged down.
Courts are equipped with ICT tools, and the ability of employees to use these devices and technologies varies. We have a relatively well-functioning court information system, but considering that the lifespan of computer programs is usually around 10 years, we have to constantly deal with either improving the existing system or think about creating the next court information system based on a new architecture in good time. 
Alongside personnel and ICT, the third critical issue is court funding, which was also discussed previously. In 2015-2016, the European Network of Councils for the Judiciary (ENCJ) prepared an overview of the judiciary’s funding  , in which a number of recommendations were made. Among other things, the basis for financing the courts should be objective and transparent. In order to ensure the separation of powers, it is important that a judges’ council or another body representing the judiciary be involved in all stages of the budget preparation process and should be able to express its opinion when adopting the budget. It has also been considered important that the preparation of the budget be at least partially under the control of the Council of Judges or another independent and autonomous body that administers the courts. Even if such a body does not exist, judges should still have a real opportunity to influence budgetary planning. Allocable resources should be sufficient to enable the administration of justice according to the standards of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In order to ensure that courts are independent of political pressure, the long-term funding of the courts should be regulated in addition to the adoption of annual budgets. Budgetary priorities must be determined by the judiciary itself and must be based on transparent criteria.
Which body or person in the judicial system should be responsible for receiving the necessary resources for the development of the organisation in the budget of the courts? Do our budget design principles still comply with European recommendations? The ability of the Council for Administration of Courts to identify funding needs and secure funding is limited. The Council does not have a support system that would prepare the necessary analyses or an advocate who would negotiate with the Government of the Republic on the budgets of courts of first and second instance. The possibilities of court chairmen are also limited. The chairman represents only one court and therefore does not have an overview of the needs and possibilities of other courts. Even if a chairman has the will to see the system-wide picture, an individual chairman’s remit does not include speaking for others. In the current budget negotiation process, court chairmen are largely bystanders and do not have decision-making powers, yet they are still responsible for the proper functioning of the institution’s management and administration of justice. Such an arrangement is not sustainable in the long run and does not guarantee efficient management of the organisation.
It is for these reasons that it is necessary to think about how to change the management model of the courts so that the independence of the administration of justice is guaranteed, cross-judicial issues can be solved efficiently, and those who are responsible for the operation of the administration of justice and the development of the organization can participate in decision-making.
There is no point in reinventing the wheel, but it is worth looking at the good solutions found in other European countries. Court management models in Europe are united by the European Networks of Councils for the Judiciary, which was established in 2004. It consists of the national institutions of the countries of the European Union, which are independent of the executive and legislative powers and are responsible for supporting the work of judges and independent administration of justice. Member States’ councils differ: some have a more administrative role, while others focus more on career issues, training and recruitment of judges. Estonia is not a member of the ENCJ, but the Ministry of Justice has an observer role.
In 2021, the ENCJ adopted sweeping views on the conditions that councils for the judiciary should meet. According to these positions, councils should be independent of the legislative and executive powers (external independence), as well as free iof inappropriate influences within the judicial system (internal independence). It is emphasised that the network does not try to establish an ideal model, but tries to formulate common principles that would ensure the independence of the judicial councils and also the effectiveness of their activities. Among other things, it has been pointed out that the participation of the Minister of Justice as a member of the Council is not recommended, as this would give the executive power the opportunity to influence the deliberations and choices of the judiciary. The annotated edition of our Courts Act explains that while no representatives of the executive branch are seated on the Council for Administration of Courts, the Minister of Justice participates with the right to convene and the right to speak. The right to vote is not necessary for the minister, because the Council for Administration of Courts mainly functions as an advisory body when deciding on issues within the minister’s own competence. Therefore, the organisation of the work of the Council for Administration of Courts does not meet the above recommendation. In this light, the question may arise as to whether the administrative model of the Estonian courts guarantees the independence of the courts.
Among Estonia’s nearest neighbours, the Finnish Court Administration Office (Tuomioistuinvirasto) operates from 1 January 2020, serving the entire court system. It is under the administration of the Finnish Ministry of Justice. The office’s task is to ensure that the courts are able to ensure the high-level quality of justice and that the administration of the courts functions effectively. The agency has an eight-member board, the executive director performs day-to-day management functions. The office is divided into three departments, which are the financial department, the development department and the administrative department. According to Riku Jaakkola, head of the office, the office works very well and the new system is perfectly suitable for the courts (previously, the Ministry of Justice performed the tasks of administering the courts). Mr. Jaakkola considers the greatest advantage to be the increase in the independence of the courts. However, budget negotiations are still held by the Ministry of Justice in Finland, which can override the proposals made by the agency. Mr. Jaakkola does not consider such a model to be the best, as it is not possible for the office to hold negotiations by itself. The biggest concern is the lack of people in the Finnish court administration office – the office started with 46 people, now there are 55 people there and in fact at least 15 more people are needed (for comparison, the court service of Estonia’s Ministry of Justice has eight people).
Even more independent is the Danish model of court administration. The Danish Court Administration (Domstolsstyrelsen) has been operating in Denmark since 1 July 1999. It is a part of the Danish judicial organisation (Danmarks Domstole), which consists of the courts, the Judicial Appointments Council (Dommerudnævnelsrådet), the Licensing Board (Procesbevillingsnævnet), the Court Administration and other institutions. The aim of the reform was to reduce political influence on the courts, and although there was no evidence that the former system had been detrimental to independence, the Danish parliament did not want to leave even the theoretical possibility of such a risk. The Court Administration is managed by the board and the executive director, and the office is responsible for the administration and development of the courts. The Board of the Court Administration has 11 members (eight representatives from the courts, one lawyer and two members with knowledge of management and the social sphere). At least five of the members must be judges. The term of the board is four years. Structurally, it is an institution under the Ministry of Justice, but the office is politically independent. The Minister of Justice has no control over the agency and no possibility to change the decisions made by the agency.
Time will tell whether the management model of the courts of first and second instance or the entire judicial system will change. It would be good to elicit ideas from Estonia’s neighbours, but will the state find the resources for this and will the courts be willing and able to take such a step?
 Development plan for courts of first and second instance 2020–2023. – https://www.kohus.ee/sites/default/files/dokumendid/Esimese_ja_teise_astme_kohtute_arengukava.pdf (02.03.2023).
 Statute of the Association of Estonian Judges. Adopted at the annual meeting of the Association of Judges on 24 November 2000, last amended at the annual meeting of the Association of Judges on 25 November 2022. – https://www.ekou.ee/ekou-pohikiri.html (3 Feb 2023).
 The labour market in 2035. Future trends and scenarios of the labour market. – https://www.riigikogu.ee/wpcms/wp-content/uploads/2018/08/tooturg_2035_tooturu_tulevikusuunad_ja_stsenaariumid_A4_veeb.pdf (31 Jan 2023).
 The future of long-term nursing care. Development trends up to 2035. Foresight Centre report, 2021. – https://arenguseire.ee/wp-content/uploads/2021/11/2021_pikaajalise-hoolduse-tulevik_raport_veeb-3.pdf (3 Feb 2023). See also the future of Estonian healthcare. Scenarios up to 2035. Summary of the Foresight Centre, 2020. – https://arenguseire.ee/wp-content/uploads/2021/03/2020_tervishoid_eesti_tervishoiu_tulevik_kokkuvote_digi-1.pdf (03.02.2023).
 A. Asi. Kohtute rahastamine: vajadus selgema lähenemise järele (Court funding: the need for a clearer approach). Juridica 6/2021. – https://www.juridica.ee/article.php?uri=2021_6_kohtute_rahastamine_nehujes_selgema_l_henemise_j_rele (31 Jan 2023).
 Funding of the Judiciary. European Network of Councils for the Judiciary Report 2015–2016. – https://www.encj.eu/images/stories/pdf/workinggroups/encj_2015_2016_report_funding_judiciary_adopted_ga.pdf (31 Jan 2023).
 Meelis Eerik has also provided an overview of this topic in the 2021 yearbook of the courts, see https://aastaraamat.riigikohus.ee/euroopa-kohtunike-konsultatiivnoukogu-tegevusest-2021-aastal/ (26 Feb 2023).
 ENCJ Compendium on Councils for the Judiciary, page 4. – https://pgwrk-websitemedia.s3.eu-west-1.amazonaws.com/production/pwk-web-encj2017-p/Reports/The%20ENCJ%20Compendium%20on%20Councils%20for%20the%20Judiciary%20-%20adopted%20EGA%2029%20October%20Vilnius%20coverpage.pdf(3 Feb 2023).
 P. Pikamäe, K. Leichter (eds.). Courts Act. Annotated edition. Tallinn Jura, 2018, § 40, p 2.5., p. 207.
 National Courts Administration. – https://tuomioistuinvirasto.fi/en/index/nbortgcbe.html (3 Feb 2023).
 For a historical outline of the Danish judicial system, see more https://www.domstol.dk/om-os/english/historic-outline/ (3 Feb 2023).
 Factsheet about the Danish Court Administration. – https://www.encj.eu/images/stories/pdf/factsheets/domstolsstyrelsen_denmark.pdf (3 Feb 2023).
 A Closer Look at the Courts of Denmark. Danish Court Administration, 2021. – https://domstol.dk/media/jqhg2psf/a-closer-look-at-the-courts-of-denmark.pdf (3 Feb 2023).