Home Year 2023 The year in review

The Ethics Council in 2023

Andra Pärsimägi
Judge of Tartu Circuit Court, member of the Ethics Council

When making a distinction between good and evil, right and wrong, we must inevitably acknowledge our failures and shortcomings.[1]

Composition of the Ethics Council

The Ethics Council is an advisory body to judges, acting on the basis of the rules of procedure adopted by the 18th regular court en banc on 8 February 2019. The Ethics Council consists of five judges elected by the court en banc and may include emeritus judges. The term of office of members of the Ethics Council is three years.

In 2023, the Council consisted of Uno Lõhmus, Krista Kirspuu, Kaupo Paal, Meelis Eerik and Andra Pärsimägi. In 2023, 15 questions were submitted to the Ethics Council, some of which contained sub-questions. The Council held three meetings: one in Tallinn and two in Tartu. Between meetings, the Council communicated online.

Introducing ethics

In our 2022 review of the Ethics Council, we highlighted the need to implement the Code of Ethics. This includes introducing the Code, providing ethics-related training to judges, interpreting and assessing the principles of the Code, and applying sanctions in the event of violation of the Code’s principles.[2]

Compared to previous years, a little progress was made in introducing the ethics of judges in 2023. In January, an ethics training session was held, with Meelis Eerik, member of the Council, as the lecturer. Judicial ethics and the prevention of conflicts of interest constituted a part of the induction training for new judges, with Council member Uno Lõhmus as the topic leader. Poet Doris Kareva was a speaker at the inspiration seminar for experienced judges, and her presentation ‘Servants of Themis’ offered a journey of reflection on decision-makers and decision-making, considerations and balance: “Between a bold voice and the wisdom of silence, between justice and mercy, there hangs a thin wondrous thread, a spiritual suspension bridge on which we walk as human beings, without either bank in sight. All decisions in life must be made in this somewhat uncertain situation, knowing the inadequacy of our knowledge and understanding the magnitude of incomprehensibility.”[3] The presentation and selection of poetry had the effect of an ethics primer that made timeless references to the core values of becoming a decision-maker and being human.

Andra Pärsimägi, a member of the Council, who was inspired by Krista Kirspuu, another member of the Council, helped to compile test questions for the ethics section for starting judges in the Moodle environment. The purpose of the test questions is to make judges think about the important values of their profession in order to identify and avoid both conflicts of interest and of role, where necessary, and to understand that before making any decision, the facts must be ascertained to the extent possible, the situation must be analysed and the relevant decision-making criteria must be considered on the basis thereof.

What are we up to?

The Council may make general recommendations to judges. In 2023, the Council made no recommendations. However, we are ready to participate in the preparation of guidelines for the use of social media, which are being developed by the Supreme Court within the framework of the communication strategy. Hopefully, we will be able to get an overview of problems related to social media that judges face and prepare general recommendations for the use of social media[4]. On the initiative of the Council, the Bangalore[5] Principles of Judicial Conduct[6] will be translated into Estonian, which will be available to everyone on the website of the Supreme Court.

In the coming years, a more systematic approach and good ideas are needed for the organisation of training for judges in the field of ethics. Since 2024, the Master’s programme of the Faculty of Law of the University of Tartu includes a compulsory subject called ‘Professional ethics of lawyers’, where two seminars deal with the professional ethics of judges. The editor-in-chief of Juridica awaits an article on the ethics of judges.

Trust and openness

The office of a judge provides one with credibility. In order to maintain and increase trust, professional ethics and morals must be adhered to in daily activities.

Judges must be guaranteed the opportunity to make decisions without outside pressure or influence. They have an obligation arising from their position to maintain and protect the independence of the administration of justice – not so much as their own privilege, but as everyone’s constitutional right to a fair trial with an impartial judge. The preamble to the Bangalore Principles emphasises that public trust in the judicial system and in the moral authority and integrity of judges is of paramount importance in a modern democratic society. It is important that judges respect their profession, both individually and collectively, in a way that is worthy of public trust, and that they strive to increase and maintain trust in the judicial system.[7]

Former Chief Justice of the Supreme Court Rait Maruste has said that the court is the third force of the democratic functioning of the state and that it cannot and must not entail any secrecy or matters that may not come to light.[8] The Ethics Council supports openness and the meaningful exchange of views. The opinions and recommendations of the Council are also published on the website of the Supreme Court[9] (section 35 of the Code of Ethics[10]). Such openness[11] is in line with one of the values of the judicial system – reliability. We value people and our team, treat everyone with respect, and are correct in our activities and understandable to the public.[12]

Discussions of the Ethics Council

The Code of Ethics, and often the opinions of the Ethics Council, are based on ideals and describe the standards a judge must strive to uphold. The principles of the Code have been clearly set out, but given the reality of life, it cannot be excluded that doubts arise as to how one or another principle is to be implemented or which value is to be preferred in the case of a conflict. It is only natural that questions arise, and it shows that the judiciary is made up of people with a conscience who are well aware of the strict requirements established for their position.[13]

On the basis of the facts and limited information submitted to it, the Council provides an opinion as to what kind of behaviour would be most consistent with the principles of the Code of Ethics. This opinion is indicative and does not imply that any deviation from it would be in conflict with ethical requirements and condemnable in each individual case. For example, ethical rules and the opinions of the Ethics Council may not unduly restrict or limit the independence of a judge.

The Code of Ethics does not specify who can appeal to the Ethics Council and how they can do so. According to the information on the website of the Supreme Court, a judge may contact the Council for an opinion on an issue concerning them or make a proposal to the Council for a general recommendation by submitting an application to eetika@riigikohus.ee.[14] Therefore, in order to receive an opinion, the question must concern the person submitting it.

The year 2023 differed from previous years in relation to the fact that the Council received a number of questions where the person submitting the question did not want an opinion on a choice or dilemma that was important to them but on whether the behaviour of a colleague was in accordance with the Code of Ethics. This demonstrates the judges’ concern about and heartache for the judicial system and the working environment of courthouses. The judiciary is as strong as its weakest link.

Judges must be guaranteed a tolerant and safe working environment. Ethical standards support open, collegial relationships, courage and the possibility to discuss a problem first in a calm manner when it arises. Aive Pevkur has referred to it as decency in the courthouse. This includes questions about the degree to which individuality is tolerable and about personal attitudes and the use of words, including irony and sarcasm.[15] The questions submitted to the Council reflected high demands, especially with respect to colleagues.

The Ethics Council is grateful to all those who have requested an opinion because based on the information received, it is possible to draw initial conclusions with respect to matters that concern judges the most. At the same time, there was the question of how to solve those bottlenecks in which the Ethics Council cannot help.

The Council did its best and responded to all the questions submitted, stressing that it is not its task to establish the facts or to verify whether the description of the event submitted by the person requesting an opinion corresponds to reality. The Ethics Council of Judges does not have the competence to identify the facts on which the question is based or hear the person submitting the question or a third party, including a colleague with respect to whose conduct an opinion is sought. The content of the Ethics Council’s opinion largely depends on the question. If it contains all the necessary information, the Council can consider it and give its reasoned opinion. If only part of the interpersonal communication or a single fragment of someone else’s conduct is presented to the Council, the Council merely has the opportunity to refer to the relevant principles of the Code of Ethics.

The Ethics Council calls on all judges and heads of courts to ensure more open and transparent communication, and greater collegiality in their relations with one other. It could become good practice that judges who notice a bottleneck have an initial opportunity to get an answer to their question in their courthouse. Voluntary readiness to communicate with a colleague and, where necessary, draw their attention to a visible omission is welcome.[16]

After the discussion, the Council tended to think that, as a rule, it is not its task to resolve conflicts between judges or assess whether a colleague has behaved improperly. The primary purpose of the Ethics Council is to assist a judge in a situation where they begin to doubt whether their behaviour is in accordance with the Code of Ethics – in which case they will receive an opinion from the Ethics Council.

Opinions of the Ethics Council

Below is an overview of the questions submitted in 2023 and summaries of the opinions of the Ethics Council. The full texts are available on the website of the Supreme Court.[17]

According to the Code of Ethics for Judges, at least three Council members must participate in the preparation of opinions and five members in the preparation of recommendations. The opinions and recommendations of the Council are the result of a consensus (section 38 of the Code of Ethics). The requirement of a consensus is unique – for example, the decisions of the Ethics Council of prosecutors and the Council of Ethics of Officials are taken by majority vote[18][19]. The Ethics Tribunal of the Bar Association adjudicates appeals in a composition of three or four members, decisions are made by majority vote and dissenting opinions are formalised as an annex to the decision.[20]

In order to give a better overview and facilitate reading, the serial number and year of appeal have been provided for opinions drawn up since June 2023.[21]

Opinion No. 7/2023
Should a judge withdraw from court proceedings involving a bank where the judge has a loan obligation (a home loan, car leasing, etc. under normal conditions)?

A judge does not have to withdraw from court proceedings where one of the parties is a bank to which the judge has a loan obligation under normal conditions. As a rule, the consumer of a service does not have any economic interest in the outcome of a case. The question of withdrawal may arise if the judge has a special relationship with the bank compared to a regular customer (for example, an obligation taken on particularly favourable or different terms) or if the judge has had significant contact with the bank in their previous career (for example, as a lawyer) and has knowledge of the circumstances of the dispute outside the proceedings.

Opinion No. 8/2023
Referring to media coverage published in March 2023, the following questions were submitted: – If ambiguous, including unsuccessful, communication has occurred, how should the judge interpret and respond to the other person’s message?
– Is it ethical for a judge to turn to the press anonymously?
– Is it ethical for a judge to turn to the press, if the person concerned has apologised?
– What could or should other judges do in such a situation, if the press has been contacted anonymously?

As a judge is under the attention of the public, they must accept personal restrictions that may seem burdening to ordinary people. Above all, a judge must behave in a manner suitable for the respectable nature of the position of a judge (section 6 of the Code of Ethics). If the press is contacted in connection with a judge and it seems inappropriate or impolite to them, they should avoid overreacting. At the same time, the judge does not have to tolerate insults or inappropriate behaviour. The judge’s reaction must be considered, balanced and dignified.

The ethical questions related to the issue of judges contacting the press have been addressed by the Ethics Council in its earlier opinion (see “Kohtunike eetikanõukogu arvamus kohtunike suhtlemise kohta meediaga” (Opinion of the Ethics Council of Judges on the communication of judges with the media). In order to strike a balance between the individual freedom of the judge and the legitimate interest of a democratic society in maintaining trust in the judiciary, the following key aspects must be taken into consideration: 1) Whether the judge’s statement calls into question their impartiality 2) Whether the judge’s statement may provoke political attacks 3) Whether the judge’s statement is in accordance with professional dignity If there are doubts regarding any of these aspects, judges should refrain from making a statement. The broader social context, the use of language and the position of the judge in the judicial system should also be assessed.

Opinion No. 9/2023
The following questions are motivated by the order of appointment of heads of departments at county courts:
– Does the chief judge have an obligation to comply with legislation and maintain the judiciary’s reputation for integrity while in office?
– Does the Chief Justice perform their duties selflessly if they do not allow the judges to form, in accordance with established practice and the law, a common opinion with respect to the candidate for the position of head of department before their appointment?

The appointment of the head of a department is in the exclusive competence of the chief judge and does not require a vote, and the chief judge is not obliged to take the opinion of the judges into consideration. At the same time, the Ethics Committee highlights the fact that the head of a department should act as an intermediate link between the chief judge and the judges working in the department, organising cooperation between them and forwarding information. This requires the trust of both the chief judge and the judges towards the head of department and their readiness to cooperate with the latter. For this purpose, the law provides for hearing the opinion of the judges working in the department upon the election of the head of department by the chief judge. The Ethics Council does not generally consider the anonymous and secret submission of opinions, including voting, to be justified when it comes to the appointment of a judge, including a head of department, who performs administrative duties. Public discussion is in line with the correct and dignified conduct of judges set out in section 31 of the Code of Ethics.

Opinion No. 10/2023
Does section 18 of the Code of Ethics for Judges oblige the chief judge to provide benefits to colleagues and grant advantages in a uniform manner or at least on the basis of clear and objective criteria? When appointing supervisors for young colleagues, should the chief judge take into consideration the professional skills, seniority and other characteristics of the supervisors?

In response to a request, the Ethics Council can make recommendations on how to introduce best practices in court, with respect to both appointing supervisors and involving judges in activities outside work, including dinners related to court work. The Training Council is developing a competency model for supervisors; those who are interested can participate in supervisor/mentor training programmes. Forms of reports concerning cooperation discussions between starting judges and mentors are also being compiled. A judge who wishes to supervise can familiarise themselves with the opportunities offered for self-improvement and participate in training. The Ethics Council is of the opinion that it would benefit open and transparent management and good relations between colleagues if the person explained their choices.

Opinion No. 11/2023
The following questions have been prompted by the organisation of the full court.
– Can guests from outside the judicial system be invited to attend the full court?
– Can inviting guests be regarded as the public disclosure of the internal affairs of the judiciary?
– If the agenda includes a discussion on the development of the court (the formation of additional departments in the future), but in reality, a guest that had been invited gave a lecture, was this in violation of ethical standards?

In the opinion of the Ethics Council, inviting guests to the full court of a county or circuit court is not contrary to the rules of ethics. The Ethics Council notes that it is not contrary to ethics to give a lecture of an educational nature or have an entertaining part at the full court. Inviting guests does not mean the public disclosure of the internal affairs of the judiciary. The Ethics Council stresses that open and transparent court proceedings and administration of courts is in line with ethical standards. The presence of an invited guest when dealing with issues concerning the development of the court does not interfere with the independence of courts. The task of the chief judge is to ensure that the invited person uses the information received only for the performance of the task for which they were invited to the full court. Replacing discussion with a lecture is not a matter of ethics of judges.

Opinion No. 12/2023
Can a judge who belongs to the management board of a non-profit association represent such association in court and under what conditions?

The general meeting of a non-profit association, including an apartment association, may appoint a member of the association holding the office of a judge as a member of the management board. As a legal person, the association is a legal fiction that can operate in relations with other persons only through a representative. Representation means the performance of legal acts in relations with third parties, including a court. Representation by a member of the management body is equivalent to the performance of the tasks of a member of the management board, as is the management of an association. The Ethics Council finds that a judge who is a member of a non-profit association and is a member of the management body of the same association is a legal representative of such association as a member of the management body and may represent the association. The judge may not receive remuneration for their activities.

Opinion No. 13/2023
At the full court, the chief judge declares that, while participating in the Council for Administration of Courts, they have heard rumours about the unethical behaviour of several judges. The chief judge states that they know the names of these judges. The chief judge condemns their behaviour at the full court but says that they have no evidence.

At the judges’ meeting, the head of the court declares that the chief judge has initiated disciplinary proceedings against one of the judges. The head of the court wants the judge to publicly regret their actions.

While the judge against whom the proceedings were commenced is not present at the meeting, the head of the court comments on their activities at the meeting.

Is such course of action/behaviour as described above ethical?

As a rule, it is not the task of the Ethics Council to resolve conflicts between judges or assess whether a colleague has behaved improperly. The Ethics Council considers it necessary to refer to general principles that relate to the questions raised.

The ethical rules for judges have primarily been adopted to ensure the fundamental principle of the administration of justice: everyone is guaranteed a fair trial in an independent and impartial court. Ethical rules must help judges behave in a way that builds public trust in the court as an institution and in the actions of judges. Therefore, it is also the primary task of the Ethics Council to advise a judge if said judge has doubts as to whether an activity is harmful to the stated objectives.

Pursuant to the fourth Bangalore Principle of Judicial Conduct, the internal and external propriety of a judge’s conduct is of great importance. According to section 9 of the Code of Ethics of Judges, judges draw the attention of a colleague to indisputably undignified behaviour and a violation of the rules established in the Code of Ethics and try to put an end to such behaviour. Where necessary, they inform the full court or the chief judge about what happened. Commentary on the Bangalore Principles (section 218) states that a judge must react when they learn from credible evidence that a colleague has behaved in an undignified manner. Judges may communicate with their colleague and draw attention to their misconduct or report the violation to a judge with the right to initiate disciplinary action (section 91 of the Courts Act).

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[1] The quote is from a presentation given by the poet Doris Kareva at a seminar for experienced judges on 5 October 2023.

[2] A. Pärsimägi. Ethics Council in 2022. Why the judiciary needs professional ethics – https://aastaraamat.riigikohus.ee/en/ethics-council-in-2022-why-the-judiciary-needs-professional-ethics/ (01.02.2024).

[3] The quote is from a presentation given by the poet Doris Kareva at a seminar for experienced judges on 5 October 2023.

[4] On 19 December 2023, an online training session on the use of social networks for judges took place and the training materials contained indicative (non-binding) guidelines for judges. These have been compiled by the United Nations Office on Drug and Crime (UNODC). – https://www.unodc.org/ji/en/knowledge-products/social-media-use.html (04.02.2024).

[5] On 1 November 2014, the Prime Minister of the State of Karnataka announced a change in the official spelling of the name of the state capital. The new name – Bengaluru – was justified by the fact that its pronunciation is more characteristic of the Kannada language (see e.g. https://www.ibtimes.co.in/bangalore-mysore-other-karnataka-cities-be-renamed-1-november-611683). Estonia accepted India’s request and language advisers designated ‘Bengaluru’ as the basic form of the name the same year (see e.g. place name database, http://www.eki.ee/knab/p_mm_et.htm). However, as the former name is common among the judiciary, the unofficial name ‘Bangalore’ is used in this yearbook.

[6] Bangalore Principles of Judicial Conduct, 2002. – https://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf (04.02.2024).

[7] Bangalore Principles of Judicial Conduct. Commented edition. UNODC, 2007, preamble, p. 18. – http://www.unodc.org/documents/corruption/publications_unodc_commentary-e.pdf (04.02.2024).

[8] R. Maruste. Ei maksa meie väikeses ühiskonnas kunstlikke barjääre ehitada, 10.12.2020. – https://www.err.ee/1202494/rait-maruste-ei-maksa-meie-vaikeses-uhiskonnas-kunstlikke-barjaare-ehitada (04.02.2024).

[9] Answers to questions submitted to the Ethics Council. – https://www.riigikohus.ee/et/kohtunike-omavalitsuskogud/kohtunike-eetikanoukogu (04.02.2024).

[10] Code of Ethics for judges. Adopted on 13 February 2004 by the third regular court en banc. Amended on 8 February 2019 by the eighteenth regular court en banc. – https://www.riigikohus.ee/et/kohtunikuamet/kohtunike-eetikakoodeks (04.02.2024).

[11] At the same time, for example, a request for information must be submitted to view the decisions of the Ethics Council of prosecutors, see https://www.prokuratuur.ee/prokuratuurist/prokuratuur/jarelevalve#eetikanoukogu-otsuse (04.02.2024).

[12] The Estonian court system. Values. – https://www.kohus.ee/en/estonian-courts/estonian-court-system (04.02.2024).

[13] Presentation of Chief Justice of the Supreme Court Dr iur. Priit Pikamäe on the development of the legal and judicial system at the court en banc on 9 February 2018, p. 5. – https://www.riigikohus.ee/sites/default/files/elfinder/analyysid/2017/RKE_ettekanne_t%C3%A4iskogu_2018.pdf (04.02.2024).

[14] https://www.riigikohus.ee/et/kohtunike-omavalitsuskogud/kohtunike-eetikanoukogu (04.02.2024).

[15] A. Pevkur. Kohtunike koodeksist praktilise eetiku pilguga. (The Code of Conduct for Judges from the perspective of a practical ethicist.) Presentation at the court en banc on 9 February 2018. – https://www.riigikohus.ee/sites/default/files/elfinder/%C3%B5igusalased%20materjalid/avalikud%20esinemised/A.Pevkuri%20slaidid.pdf (04.02.2024).

[16] Judges should first express their opinion concerning judges and the judicial system within the court (system). See Opinion No. 25 of the Consultative Council of European Judges (CCJE), para. 53. – https://rm.coe.int/opinion-no-25-2022-final/1680a973ef%0A%0A (04.02.2024).

[17] Answers to questions submitted to the Ethics Council. – https://www.riigikohus.ee/et/kohtunike-omavalitsuskogud/kohtunike-eetikanoukogu (04.02.2024).

[18] According to the second sentence of subsection 11 (4) of the Code of Ethics of Prosecutors, the Council discusses matters with at least three members and adopts decisions by a majority of votes in favour, see – https://www.prokuratuur.ee/tootamine-prokuratuuris/prokuratuur-tooandjana/eetikakoodeks/v-peatukk (04.02.2024).

[19] According to subsection 6 (2) of the bases for the organisation of work of the Council of Ethics of Officials (RT I, 19.05.2015, 4), the Ethics Council makes a decision by a majority of votes of the members of the Ethics Council who participate in the meeting. Upon the equal division of votes, the chair of the Council of Ethics of Officials has the deciding vote. Dissenting opinions are recorded in the minutes.

[20] https://advokatuur.ee/et/advokatuurist/struktuur/aukohus (04.02.2024).

[21]The first opinions of the Ethics Council from 2023 were included in the Yearbook of Estonian Courts for 2022. – https://aastaraamat.riigikohus.ee/eetikanoukogu-2022-aastal-milleks-meile-kohtuniku-kutse-eetika/ (04.02.2024).