Paavo Randma
Justice of the Supreme Court, Chair of the Disciplinary Chamber

 

According to subsection 93(1) of the Courts Act (CA), disciplinary cases of judges are adjudicated by the Disciplinary Chamber (established at the Supreme Court), which is comprised of five justices of the Supreme Court, five Circuit Court judges and five judges of courts of first instance. For the adjudication of complaints concerning the work of judges, the chair of the Disciplinary Chamber (hereinafter also: the Chamber) forms a five-member panel consisting of three Supreme Court justices, one Circuit Court judge and one judge of a court of first instance. The members of the Chamber were elected by the court en banc on 8 June 2023 for three years and they have not changed since the previous yearbook of courts.[1]

Last year, two[2] cases of offences were heard by the Disciplinary Chamber, which in both cases resulted in convictions of judges, and in one case even in the removal of a judge from office. Both legal disputes also reached the Supreme Court en banc (hereinafter: court en banc), which made several decisions of a fundamental nature, which, in addition to adjudicating on individual cases, also concerned the disciplinary proceedings as a whole. Below, I will briefly reflect on the moments that, in my opinion, deserve to be highlighted in the cases in question and are of primary importance in shaping the future practices of the Disciplinary Chamber.

Decision No. 9-13/24-1 of the Disciplinary Chamber of 10 June 2024 and Decision No. 3-24-2036 of the Supreme Court en banc of 11 November 2024

In the case in question, the judge was found guilty of improper performance of official duties in the proceedings of two civil cases (exceeding the reasonable time for proceedings, failing to respond to inquiries, etc.), as well as of disrespectful and rude communication with a party to the proceedings and of refusing to meet with the chair of the court, disregarding the relationship of subordination. It is worth highlighting the following from the decision of the Disciplinary Chamber and the subsequent adjudication of the court en banc.

First of all, it should be noted that the question of what kind of proceeding is involved in handling a disciplinary offence has finally been at least partially answered. The court en banc agreed with the position taken in the decision of the Chamber that, when conducting the procedure, the Chamber must primarily proceed from the investigative principle inherent in administrative court proceedings. I would say that this is perhaps the most significant change compared to the previous practices of the Chamber, which seemed to be based more strictly on understandings specific to criminal procedure. In explaining its approach, the Chamber stressed that the office of a judge carries extensive power and, in order to ensure society’s trust in the court, this power must include taking real responsibility for improper performance of official duties[3], which could certainly not be the case if the adversarial principle inherent in criminal proceedings were applied to disciplinary proceedings. It follows from the above that in the hearing of the judge’s case, the Chamber is not limited solely to the facts and evidence presented in the charges. The court en banc supported this approach and stated that a disciplinary charge should be considered a reasoned statement that triggers an investigative procedure before the Chamber. The court en banc also agreed that collecting additional evidence is not only the right of the Chamber, but also an obligation in certain cases. Namely, the court en banc found that although one point of the charges against the judge was brief and general, this deficiency does not automatically lead to the judge’s acquittal, but rather obliges the Chamber to collect additional evidence based on the principle of investigation.

However, the court en banc somewhat limited the competence of the Chamber with respect to the facts that may emerge from the evidence examined on the Chamber’s initiative. Namely, the Chamber proceeded from the understanding that if, during the disciplinary proceedings, the evidence examined reveals additional professional misconduct on the part of the judge, their attribution to the judge is not ruled out, provided that the judge’s information and right of defence are at the same time guaranteed. The court en banc did not support this and stressed that the law does not give the Chamber the right to file disciplinary charges and even if the Chamber finds, during the process of collecting additional evidence, that a judge may have committed a disciplinary offence that was not mentioned in the charges, it cannot convict the judge of it. However, the position of the court en banc does not mean that the possible addressing of such professional misconduct identified outside of prosecution in the same proceedings is completely ruled out. Although the court en banc said that such new charges could not be brought by the Chamber, but it did not in any way rule out that it could be brought by a person specified in subsection 91(2) of the CA. In other words, it appears that the person who filed the charges can supplement the charges that have been filed according to new circumstances that have emerged. If the judge is then able to exercise their right of defence, specifically to present their evidence, positions, and objections, the principle of fair court proceedings has not been violated.

The following fundamental question that the Chamber faced when discussing the judge’s case is also related to the topic of the right to defence. Namely, in the charges, the judge was accused of behaving inappropriately towards members of their procedural team. To support this point of the charges, the chair of the district court, among other evidence, presented the Chamber with several e‑mails and summaries from persons associated with the judge’s procedural team, which described both the inadequate work organisation and explained the reasons they wanted to resign from working in this procedural team. However, the information in question was forwarded to the chair of the district court with a clause that the identity of the persons who disclosed the information should not be revealed to the judge. The Chamber therefore had to find an answer to the question of whether, and if so, under what conditions and to what extent, such so-called anonymous sources of evidence could be used in adjudicating on the judge’s case.

The Chamber found that the use of so-called anonymous evidence, the content of which is misconduct by a person in a higher position (of power), cannot be ruled out. Unfortunately, it is often characteristic of internal investigations of institutions that, due to vertical power relations, individuals in a lower position do not want to reveal their identity when referring to an alleged issue, whether the reason is fear of possible negative consequences, a sense of loyalty towards a colleague or a coworker who is in a higher position, etc. The Chamber also pointed out that this power relationship must be viewed from a substantive, not a formal aspect, since, strictly speaking, the law clerk is not an employee subordinate to a judge.

Although at first glance the use of anonymous sources of evidence is difficult to reconcile with the principles of fair trial and equality of parties – namely, that parties must have an equal opportunity to review and comment on each other’s evidence and positions – the Chamber noted that this requirement is not absolute. There is reason to speak of inequality of the parties as a manifestation of unfair judicial proceedings only if the difficulties associated with the denial of access to evidence in exercising the right of defence are not balanced. Referring to the practice of the Criminal Chamber of the Supreme Court, the Chamber found that, if there is a desire to use anonymous evidence, the content of the evidence must be disclosed in some other way with sufficient specificity so that the defendant can present substantive objections to it. In the disciplinary case at hand, several witnesses gave direct testimony at the panel session, describing the content of these various appeals and the accusations made against the judge in them; the only thing the judge did not know was the identity of the persons behind these appeals. However, this did not in the least take away the effective opportunity to object to these allegations. Although it must be admitted that the decision of the court en banc does not contain an explicit position on this legal issue, the acceptance of the Chamber’s approach follows from the part of the decision that states that “the court en banc did not establish that the Chamber had relied on evidence on which the applicant was not able to express an opinion”.[4]

The Chamber also addressed the issue of the division of the burden of proof in a situation where a judge is accused of violating a reasonable time for proceedings and found that in certain cases this may be reversed, i.e. a partial burden of proof may fall on the judge. More specifically, the Chamber stated that although a reasonable time for proceedings is an undefined legal concept and the specifics of each individual case must be taken into account when determining it, this does not mean that the time spent on the proceedings of a case alone – without knowing the circumstances of the specific case – could not be assessed separately and through so-called external observation as violating a reasonable time for proceedings. The decision provides an example that if a case has taken X time to process in a district court, then it can be concluded from the duration of the proceedings alone that the case has not been adjudicated within a reasonable time. The Chamber stressed, though, that this does not mean that in such a case, the judge’s wrongful conduct within the meaning of subsection 87(2) of the CA could be presumed. However, in this case, the judge needs to separately justify which circumstances beyond their control mean the requirement of a reasonable time for proceedings has not been wrongfully violated. As an example, the Chamber refers to the following possibilities in the decision: the exceptional nature of the case (e.g. a particularly large number of witnesses) or legal complexity, consistent and skilful (possibly coordinated) obstruction by one or more parties to the proceedings (see, for example, RKKK (Supreme Court Criminal Chamber) 18.06.2010, 3-1-1-43-10), the need to apply to the European Court of Justice for a preliminary ruling, the judge’s extremely heavy workload compared to their colleagues, health reasons, etc. In the case under consideration, the Chamber found that four years was clearly unreasonable for a civil case to be adjudicated in a district court and that there were no circumstances that, individually or in the aggregate, would have justified such a length of proceedings. The Supreme Court en banc accepted this approach as well, noting that the processing of a civil case for more than four years is objectively a long time and, although this is not in itself a disciplinary offence for a judge, in the case of such a long procedure, the judge must show additional care to adjudicate the case as quickly as possible. However, the judge did not do this in this case.

Fourthly, it is worth highlighting that the question of whether and to what extent a judge has grounds to rely on the privilege against self-incrimination when the chair of the court asks them for explanations under subsection 45(1)(3) of the CA has been resolved. Paradoxically, due to the judge’s views, the Chamber had to begin by explaining the elementary truth and refuting the misconception, as if the judge’s independence meant acting in some kind of so-called control vacuum (more on this: CA. Annotated edition. Tallinn 2018, section 45 comm. 1.1 et seq.).[5] The Chamber had to explain that the judicial system is a hierarchical structure, where a higher-ranking official has both monitoring and intervention powers in the cases specified in the law, and the judge has the obligation, pursuant to subsection 45(1) of the CA, to provide explanations on all relevant issues if a competent person should present them. The purpose of the requirement of independence is to ensure the impartiality of the court in performing its duties (including ensuring the equality of all before the court). The independence of the court and the judge does not mean the absence of any oversight (and consequently, accountability). In conclusion, it can be summarised that the constitutionally guaranteed independence of a judge is simultaneously accompanied by a responsibility (subject to oversight) to properly perform one’s duties.

It must be admitted that the previous practice of the Disciplinary Chamber holds that “if the subject of the professional oversight is to clarify whether a judge committed a disciplinary offence, the judge may, guided by the privilege against self-incrimination arising from the subsection 22(2) of the Constitution, refrain from providing a substantive explanation to the chair of the circuit court” (Disciplinary Chamber decision No. 9-13/19-2 of 21 May 2019, p. 15). In the current case, the Chamber somewhat expanded this extremely narrow understanding in its decision, noting that “insofar as the information requested to ensure the administration of justice pursuant to the established procedure may lead to the commission of a disciplinary offence, a judge, guided by the privilege against self-incrimination, may refrain from answering some questions of the chair of the court, which does not mean, however, that they should ignore (repeated) invitations to a meeting” (paragraph 101). However, the court en banc resolved this issue even more decisively, explaining that the privilege against self-incrimination cannot at all be used to derive a judge’s right to ignore the inquiries of the chief judge in oversight proceedings. The chair of the court has the obligation to ensure the administration of justice in the court pursuant to the established procedure (subsection 12(2) of the CA), and the judge has the obligation to respond to the address made within the framework of the chief judge’s oversight, including to meet with the chief judge to give oral statements if the latter so requests. The privilege against self-incrimination extends only to offences within the meaning of Estonian penal law, the Constitution and Article 6 of the ECHR. Only if, during the meeting, the judge is asked to answer questions that could incriminate them in any such act, do they have the right not to answer that question. This approach should make the possibility of relying on the privilege against self-incrimination in the framework of oversight proceedings relatively narrow. Yes, presumably a judge does not have to provide a substantive explanation to the chief judge if their possible offence in the form of illegal fishing, drunk driving, or violation of public order is at issue, but presumably the occurrence of such acts in the behaviour of judges is rather low.

Next, I would like to highlight that the court en banc provided specific guidelines in its decision on how a judge should behave if circumstances arise that prevent them from effectively performing their duties for one reason or another. In the specific case, this was related to the judge’s claim that the delay in court cases was due, among other things, to their long-standing (and partly permanent) health problems. The court en banc stated unequivocally that if a judge has reduced working capacity due to health concerns, the law provides both the opportunity and – what is particularly important – the obligation to act accordingly. The decision states that subsections 371 (1) and (2) of the CA provide for the possibility of working part-time and that according to the law, an application for this must be submitted by the judge, who knows best why they need a part-time workload. The court en banc emphasises separately that if a judge has health problems that prevent them from doing their job, it must be assumed that they will actively take steps to resolve the situation. At this point, I would like to stress that the guideline in question needs to be viewed somewhat more broadly. Although the court en banc’s decision only explicitly concerns working with a reduced workload in the circumstances listed in subsection 371 (1) of the CA (i.e. in connection with the need to raise a child under three years of age and partial work capacity), the decision also makes clear reference to subsection 371 (2) of the CA, which speaks of the possibility of working with a reduced workload also in cases not mentioned in section 1. It is no secret that many judges actively use the opportunity provided for in the first sentence of subsection 49(1) of the CA to work outside the judicial office in teaching and research. At the same time, it should not be forgotten that the third sentence of the same subsection stipulates that any employment elsewhere than in the office of a judge may not harm the performance of official duties of a judge, including their ability to perform work comparable to that of their colleagues. Additional work must therefore not affect the obligation arising from subsection 6(1) of the CA to perform one’s duties within a reasonable time, having regard to the procedural time limits prescribed by law. Therefore, if a judge’s workload in an educational institution or training activity turns out to be such that it begins to affect, for example, the procedural time limits of court cases, they are obliged, pursuant to the court en banc’s instruction, to contact the chair of the court with a request to reduce their workload, which, according to subsection 371(4) of the CA, will understandably also result in having their salary reduced in proportion to the workload. Since, pursuant to subsection 49(1(2)) of the CA, a judge must notify the chief judge of the court about their employment elsewhere than in the office of judge – and also the extent of it – it is reasonable for the chair of the court to also discuss whether and to what extent it would be necessary to simultaneously reduce the workload before granting the relevant permission. I consider this to be an extremely weighty position expressed by the court en banc, which judges must be guided by in their future conduct.

Finally, it is worth mentioning that this case ultimately resolved the issue of whether and what significance a judge’s previous disciplinary sanctions have in sentencing – in other words, whether they can be taken into account or not. The Chamber answered this question in the affirmative and noted that although subsection 88(6) of the CA provides that a disciplinary sanction expires if the judge does not commit a new disciplinary offence within one year after the entry into force of the decision of the Disciplinary Chamber, this does not mean that it should not be referred to. Namely, subsection 88(4) of the CA requires that, when imposing a sentence, the judge’s personality characteristics be taken into account, which undoubtedly includes previous service experience, including possible previous (also expired) disciplinary sanctions. The Chamber therefore did not consider this as an aggravating circumstance, but as a fact characterising the judge among other circumstances. The court en banc added the argument that the disciplinary liability of judges has an important self-cleansing function for the judiciary as a whole, and if there are persistent problems with a judge, none of which taken individually are serious enough to warrant the removal of the judge, then the standards of disciplinary liability would not be able to fulfil this function if each new violation were to be treated as the first in terms of sanctions. I would also note that the opposite position could lead to relatively strange situations. Namely, it is unfortunately not ruled out – as is also clearly demonstrated by the disciplinary case No. 9-13/24-2 discussed below – that a judge may delay the processing of a case which they have already been sanctioned for delaying in adjudicating. Naturally, a party to the proceedings wishing to institute disciplinary proceedings would refer to this in their application. Undoubtedly, such a fact would also be noted in the prosecution, as it shows the judge’s attitude towards the guidelines given to them and the decisions of the Disciplinary Chamber. However, it is possible that by the time new disciplinary proceedings are instituted, these disciplinary sanctions have already expired. However, it would be more than strange if the Disciplinary Chamber could not do more than hide the previous sanction behind some kind of euphemistic wording, such as “previous warnings by the Disciplinary Chamber were ineffective”, or, even worse, write that the judge has not previously had disciplinary sanctions imposed on them.

Regarding the expired disciplinary sanctions, I would like to note the following. By now, a practice has developed according to which the decisions of the Disciplinary Chamber are public and available on the website of the Supreme Court for the period specified in subsection 88(6) of the CA, i.e. within one year after the decision enters into force. After this deadline, the decisions of the Chamber “disappear”. I believe this practice needs fundamental change, primarily for the following reasons. First of all, it is difficult to understand what causes such a practice in a situation where the decisions of the Supreme Court en banc made in appeal proceedings continue to be available even after a year. In essence, this leads to an incomprehensible situation where the publicity of the decision depends on whether or not the judge exercises the right to appeal against a conviction by the Disciplinary Chamber. On the other hand, it must be acknowledged that subsection 87(2) of the CA formulates the disciplinary offence of a judge in an extremely general manner, which may raise questions about legal clarity and the predictability of the sanctions. However, as is rightly stated in legal literature, with reference to the practice of the European Court of Human Rights and also to the regulations of other countries, this must be approached with understanding and, to a certain extent, taken as inevitable; it is difficult to formulate a disciplinary offence with a high degree of clarity, as there is no possibility of foreseeing all possible life events, and striving for explicit regulation would in turn lead to the need to constantly amend and supplement the law. But here comes the argument that the predictability of the consequences of a judge’s behaviour is ensured by the consistent – and naturally accessible – interpretative practice of the Disciplinary Chamber.[6] Section 10 of the Code of Ethics for Judges also states that the requirements of professional ethics are interpreted, among other things, based on the decisions of the Disciplinary Chamber of Judges. However, the latter is difficult to ensure if decisions keep disappearing. Yes, to some extent this knowledge is presumably retained among the judiciary as practice, custom and the opinion of a senior colleague, which the Code of Ethics also mentions in section 10 as aids to the interpretation of professional ethics, but understandably this intra-system folklore is not of the same value as the opportunity to view a specific court decision. The need to change the current practice is also confirmed by the fact that there have been appeals to the Disciplinary Chamber where the judge refers to a more or less vague memory of some Chamber’s decision that supposedly dealt with one situation or another, and asks to recall the circumstances reflected there and the conclusions expressed by the Chamber. Therefore, I understand that the current practice needs to be decisively changed and all decisions of the Disciplinary Chamber must be made available retrospectively, of course pseudonymising them to the necessary extent.

Disciplinary Chamber Order of 15 July 2024 and Decision No. 9-13/24-2 of 24 September 2024, Supreme Court en banc Order No. 3-24-2147 of 9 September 2024 and Decision No. 3-24-2946 of 19 February 2025

First of all, it must be stated that the case in question is notable primarily for the scope of the charges presented; substantive and procedural conclusions that are significant for future practice are much more scarce in this case. Namely, the judge was accused of misconduct in the performance of their official duties in 17 civil cases and in 27 supervisory proceedings over civil case. In all cases mentioned in the charges, the judge ignored the obligation to adjudicate the civil case within a reasonable time and at the lowest possible cost. It is also noteworthy that the Disciplinary Chamber had already sanctioned the judge for a violation related to one of the cases mentioned in the charges, and they committed new disciplinary offences while the sanctions were in effect. The charges also included an accusation of non-subordination to the chair of the district court in oversight proceedings. Perhaps only the following is worth highlighting from this case.

Suspension of a judge from service for the duration of disciplinary proceedings

Referring to the severity, nature and possible proof of the allegations in the charges, the Disciplinary Chamber, in view of previous practice, made a rather exceptional decision and, on its own initiative, removed the judge from service for the duration of hearing of a disciplinary case, along with a reduction in salary by half, pursuant to subsection 95(1) of the CA. The order in question emphasised the gravity of the numerous violations alleged against the judge. The Disciplinary Chamber had to stress the obvious fact that the administration of justice is a central function of the court, and the wrongful failure to fulfil this duty clearly undermines society’s trust in the judiciary as a whole. The Chamber separately highlighted the judge’s non-subordination to the chair of the court, which was expressed in their refusal to provide explanations during the oversight proceedings and – which the Chamber found particularly reprehensible – in their ignoring the deadline set by the chair of the court for completing the proceedings in one specific case. Considering these circumstances, the Chamber concluded that the judge had, by their behaviour, placed themselves outside the system, not considering it necessary to follow the regulations in force, and removed the judge from service.

The judge’s appeal to Supreme Court en banc based on subsection 95(6) of the CA was unsuccessful. It is worth noting that in this complaint, the judge requested the court en banc to make a decision that the law does not allow at all – to allow them back into service, but to leave the decision of the Chamber regarding the salary reduction unchanged. In summary, it can be stated that the court en banc’s Order No. 3-24-2147/7 of 9 September 2024 shares the previously described understandings of the Disciplinary Chamber. All parties to the proceedings have the right to expect that the court will adjudicate the legal issue affecting them within a reasonable time, and it was clear from the charges that the judge was unable to ensure this. In order to prevent the commission of new disciplinary offences through one’s own (continued) inaction and to prevent the aggravation of the harm already caused to the parties to the proceedings, the court en banc found that removal from office was an appropriate measure, as it would result in the judge’s pending cases being simply redistributed. The court en banc stated that “in the present case, there is no measure less lenient than temporary suspension from service that would have enabled the Chamber to protect equally effectively the right of the parties to the proceedings in the applicant’s cases to have their cases resolved within a reasonable time.” Based on the wording used in the court en banc‘s order, I would venture to assume that the court en banc gave the Disciplinary Chamber a positive obligation to ensure the protection of the rights of the parties to the proceedings, and to do so on its own initiative, i.e. without a corresponding request from the prosecuting party. This conclusion is confirmed by the argument used by the court en banc that the right of those who have applied to the court to a reasonable time for proceedings is a more important benefit than the infringement of the rights of a judge in the form of temporary removal from office.

Resolving the judge’s case

In this case, the first issue to be resolved was how the Chamber should approach a situation in which a judge pleads guilty to the charges against them, in terms of procedural law. In other words, does the Chamber have to further verify on its own initiative whether there is a violation of substantive or procedural law in the performance of the judge’s duties, whether the factual allegations presented in the charges are true, or whether there are other circumstances justifying the judge’s behaviour? The Chamber found that, as a rule, this question should be answered in the negative. Such an initiative from the court and guidance from the principle of investigation would be appropriate, especially in cases where the interests and rights of the affected person would remain unprotected, for example due to a complete lack of or insufficient legal education, i.e. admitting guilt could potentially lead to harming oneself due to ignorance. In disciplinary proceedings, where the proceedings are conducted against a person with a higher professional education and working as a judge (and therefore presumably with the quality of a top lawyer), this would of course not be the case. Since the judge admitted their guilt in exceeding the reasonable time limit for the proceedings in 11 civil cases and for nine supervisory proceedings over civil cases, the Chamber limited itself in its decision to merely listing them and finding the judge guilty, without adding additional reasons for individual cases.

This naturally raises the question of how to act if the judge should not comment on the charges made against them at all or does so only partially. The first described situation is entirely possible, because the opportunity given to a judge in disciplinary proceedings to submit written explanations is not mandatory, nor does it preclude adjudicating the judge’s case if they fail to appear at the Chamber’s hearing. It is also not uncommon for the judge to simply not comment on one or more of the allegations made in the charges, neither in writing nor orally. How should the Chamber act in such a case? I believe that even in this case, silence should essentially be considered an acceptance of the allegations. It would be difficult to imagine a situation where the Chamber would start looking for some justifying arguments on its own initiative, and then start confirming and/or refuting them. Presumably, it can then be limited to a more general examination of whether the conduct described in the charges corresponds to the characteristics of a disciplinary offence and whether it has not expired (in essence, the situation would be analogous to how the court acts in criminal proceedings when approving an agreement: the court’s role is limited to examining whether the act described in the agreement corresponds to the elements of a crime). However, the answer to this question must be found in further practice.

Returning to the current case, the Chamber also found the judge guilty of violations committed in the remaining 16 supervisory proceedings over civil case and in the proceedings of six civil cases, which the judge objected to. The key words that the Chamber had to rely on time and again in motivating its decision were complete inaction, complete ignorance of the parties to the proceedings, only a superficial processing of the case and abstention from the substantive proceeding of the legal dispute. For example, the Chamber realised that a case had been pending before a judge for over ten years, but it had not yet reached a substantive resolution during that time. It is also worth highlighting the fact that in a simple dispute that had been pending before the judge since 2020, and for which they had been sanctioned by the Disciplinary Chamber’s decision No. 9 13/22-2 of 23 September 2022, legal clarity was reached extremely quickly after the judge was removed from service. When the Disciplinary Chamber’s order to remove the judge from service for the duration of the proceedings entered into force on 9 September 2024, the case was assigned to another judge on 10 September 2024, who made a decision a few days later, more precisely on 16 September 2024.

In this case too, the Chamber had to reiterate that in oversight proceedings, the judge is obliged to provide the chair of the court with the explanations requested of them. The decision also had to explain that in a situation where the judge’s behaviour alone has led to them having to be asked for explanations about the delay in processing dozens of cases, it is inappropriate to base their own excuses on the argument that they did not have time to do so “due to the large number of cases requiring explanation”.

However, it can be assumed that the sanction applied by the Chamber in this case, which was the removal of the judge from office, received the most attention. It must be admitted that while this type of sanction is not unprecedented, it is rather exceptional.[7] Guided by subsection 88(4) of the CA, taking into account the nature, gravity and consequences of the disciplinary offence and the personal characteristics of the judge, the Chamber concluded that, unfortunately, there is no alternative to this type of sanction in this case. A significant (though not decisive) role was played here by the approach previously accepted by the court en banc, namely that when assessing personal characteristics of the judge, the judge’s previous service, including possible disciplinary offences, must also be taken into account. The present case vividly illustrated that this approach was the only correct one to take.

The gravity of the judge’s offences was, in the opinion of the Chamber, difficult to overestimate; since the administration of justice is a central function of the court, a wrongful failure to fulfil this duty undermines society’s trust in the judiciary as a whole, i.e. it brings about considerable negative consequences for the legal order in general and significantly damages the reputation of the court. The gravity of the offence was also characterised by non-subordinance to the chair of the court, which, in the opinion of the Chamber, clearly indicated the judge’s unwillingness to follow the rules applicable across the judiciary in their work.

The judge’s misconduct was similar in nature and, unfortunately, consistent. A significant portion of the violations described in the disciplinary case occurred during the validity of the sanction imposed by the previous Disciplinary Chamber’s decision. In addition, this was already the fourth disciplinary sanction in the judge’s ten-year service, and the volume of complaints has only increased over time and the nature of violations has expanded. Unfortunately, previous measures were ineffective. It also meant that the judge was completely indifferent to the decisions of the Disciplinary Chamber and the criticisms made therein. In summary, the Chamber had to conclude that this was an established and unchanging pattern of behaviour that clearly indicated the personal characteristics of the judge were unsuitable for their work. The judge’s appeal to the Supreme Court en banc was completely unsuccessful.

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[1] Yearbook of Courts 2023. – https://aastaraamat.riigikohus.ee/ulevaade-kohtunike-distsiplinaarkolleegiumi-tegevusest-2023-aastal/ (25.02.2025).
[2] Over the past ten years, the number of charges filed with the Disciplinary Chamber has ranged from one to three. However, the year 2014 was an exception, as the Chamber adjudicated on as many as 6 disciplinary charges then.
[3] Such a clear requirement also results from the practice of the European Court of Justice: see, for example, EKo 11.05.2023, C-817/21 – Inspecţia Judiciară.
[4] However, it is necessary to stress that such so-called anonymous information cannot possibly be the only evidence on which a final decision can be based on whether a judge has acted wrongfully within the meaning of section 87 of the Courts Act or not. Then it would not be possible to truly speak of effective exercise of the right of defence (see also subsection 15(3) of the Code of Criminal Procedure).
[5] At this point, it is appropriate to quote colleague J. Põld’s dissenting opinion to the Disciplinary Chamber’s decision of 21 May 2019, No. 913/19-2: “The independence of the judge is not a personal privilege. The independence of the judge is a guarantee for the parties to the proceedings. The court en banc has also reached this conclusion in the decision under consideration: Oversight exercised by the chief judge of the court is not a violation of the judge’s independence, because the chief judge does not exercise oversight over the substantive aspect of the administration of justice, but rather the organisation of the judge’s work.” (p 35)
[6] U. Lõhmus’s comments on section 87 – Courts Act. Annotated edition. Tallinn 2018, comm. 7.
[7] In relatively similar circumstances, the Chamber applied removal from office in Decision No. 3-8-11-2-11 of 31 October 2011, whereby the judge was found guilty of violating the requirement of a reasonable time for proceedings in 14 cases, i.e. to a lesser extent than in the present case. It should also be mentioned that in the Decision of 10 June 2024, concerning the case No. 9-13/24-1, discussed first in the article, the situation was very seriously bordering on removal from office and was only narrowly avoided. The Chamber had to admit in its own motives that this does not appear to be a sustainable situation in the long term. However, the Chamber still considered it possible to apply a milder sanction, which was a 20% salary reduction for six months based on subsection 88(1(3)) and section 89 of the Courts Act. The Supreme Court en banc left the sanction unchanged and did not amend the relevant motives of the Chamber.