Andra Pärsimägi
Judge of Tartu Circuit Court, member of the Ethics Council
Composition
The Ethics Council of Judges (hereinafter referred to as: the Council) is an advisory body. The Council consists of five judges elected by the The General Assembly of Judges and may include emeritus judges. The term of office for a member of the Council is three years. In 2024, the Chair of the Council was Andra Pärsimägi and the members of the Council were Kaupo Paal, Meelis Eerik, Krista Kirspuu, Liivi Loide, Katre Poljakova and Uno Lõhmus. During the year, the terms of office of Meelis Eerik and Krista Kirspuu expired and Liivi Loide and Katre Poljakova were appointed as new members of the Council. On 7 August 2024, Uno Lõhmus passed away. The Ethics Council commemorates the active member of the Council. Uno Lõhmus played an important role in the interpretation and implementation of ethical standards for judges.
Commentary on the Bangalore Principles
The core texts of professional ethics for judges include the Bangalore Principles[1]. According to the preface to the Bangalore Principles, the principles are of great value not only for the judiciaries of all nations, but also for the general public and for all those concerned with laying down a firm foundation for a global judiciary of unimpeachable integrity.
The Code of Ethics of the Estonian Judges can contain and be interpreted based on the Bangalore Principles. With the support of the Supreme Court, a “Commentary on the Bangalore Principles of Judicial Conduct”[2] has been prepared and made available to everyone in Estonian.[3] The comments are built on six core values, which are independence, impartiality, integrity, propriety, equality, and competence and diligence. The comments provide explanations and guidelines, are easy to read and have familiar content. To illustrate this, I have added some excerpts from the Commentary below. The first of these relates to the judiciary in general, while the others specifically concern the values mentioned above.
When the work loses its novelty, when the case load resembles the burdens of Sisyphus, when the tyranny of reserved judgements palls, the only permanently sustaining motivation to strive onwards is in the realisation that what you are called on to do is essential to the society in which you live… (comm. 15).
Independence
Judicial independence is not a privilege or prerogative of the individual judge. It is a responsibility imposed on each judge that enables them to adjudicate a dispute honestly and impartially on the basis of the law and the evidence, without external pressure or influence and without fear of interference from anyone (comm. 22).
The judge’s duty is to apply the law as they understand it, on the basis of their assessment of the facts, without fear or favour and without regard to whether the final decision is likely to be popular or not (comm. 27).
Impartiality
Independence is the necessary precondition for impartiality and is a prerequisite for attaining impartiality (comm. 51).
Impartiality is not only concerned with the actual absence of bias and prejudice, but also with the perception of their absence (comm. 56)
A judge’s personal values, philosophy, or beliefs about the law may not always constitute bias. Judicial rulings or comments on the evidence made during the course of proceedings do not fall within the prohibition either, unless the judge appears to have a closed mind and is no longer considering all the evidence. (comm. 60)
Integrity
Integrity is an attribute of rectitude and righteousness. The components of integrity are honesty and judicial morality. There are no degrees of integrity. Integrity is absolute. (comm. 101)
In court, depending on any applicable judicial conventions, a judge should not ordinarily alter the substance of reasons for a decision given orally. On the other hand, the correction of slips, poor expression, grammar or syntax and the inclusion of citations omitted at the time of delivery of oral reasons for judgement are acceptable. (comm. 107)
Propriety
The social contact between members of the judiciary and members of the legal profession is a long-standing tradition and is proper (comm. 119).
A serving judge does not surrender the rights to freedom of expression, association and assembly enjoyed by other members of the community, nor does the judge abandon any former political beliefs and cease having an interest in political issues. However, restraint is necessary to maintain public confidence in the impartiality and independence of the judiciary. (comm. 134)
Equality
A judge should not be influenced by attitudes based on stereotype, myth or prejudice (comm. 184).
It is the judge who sets the tone and creates the environment for a fair trial in their court (comm. 189).
This is consistent with the judge’s general duty to listen fairly but, when necessary, to assert control over the proceedings and to act with appropriate firmness to maintain an atmosphere of equality, decorum and order in the courtroom. What constitutes “appropriate firmness” will depend on the circumstances (comm. 191).
Competence and diligence
Competence in the performance of judicial duties requires legal knowledge, skill, thoroughness and preparation. A judge’s professional competence should be evident in the discharge of their duties (comm. 192).
To consider soberly, to decide impartially and to act expeditiously are all aspects of judicial diligence (comm. 193).
A judge should have sufficient time to permit the maintenance of physical and mental well-being and reasonable opportunities to enhance the skill and knowledge necessary for the effective performance of judicial functions (comm. 194).
Publicity of the court proceedings
The preamble to the Bangalore Principles emphasises that public confidence in the moral authority and integrity of the judiciary is of paramount importance in a modern democratic society. Undeniably, a judiciary with integrity is the bedrock of democracy and the rule of law. Even if all other protections fail, the courts are like a bulwark that protects the public against any encroachments on rights and freedoms under the law (Preface to the Bangalore Commentary).
The trustworthiness of courts is based primarily on the publicity of court proceedings and court decisions.
The publicity of court proceedings and the opportunity to learn about case law must be guaranteed in all types of proceedings. At the same time, as the Chancellor of Justice has pointed out, the balance with the interests of the parties to the proceedings must be ensured. The possible fear that the materials of the court proceedings become public must not deter people from going to court to defend their rights.[4]
According to subsection 24(4) of the Constitution of the Republic of Estonia, a judgement must be pronounced publicly, except in cases where the interests of a minor, spouse or victim require otherwise. The announcement of a judgement is understood to mean both the reading of the judgment in the courtroom after it has been made and the announcement of the judgment in another manner. The Council for Administration of Courts has recommended in the courts’ media communications that a judgement that has not entered into force is public and must be forwarded to a journalist upon request, emphasising that it is a decision that has not entered into force.[5] Currently, in civil and administrative court proceedings, a judgement that has not entered into force is only notified to the parties to the proceedings, and the judgement is published on the computer network after it enters into force (Code of Civil Procedure section 462, Code of Administrative Court Procedure subsection 2922).
The public access to court decisions in civil and administrative cases that have not entered into force is unreasonably limited. To change the situation, a draft Act was prepared, which would require future court decisions to be published in the Riigi Teataja with the note “not entered into force”, and if the decision enters into force or is cancelled, the corresponding note would change automatically.[6] With the change in the composition of the Riigikogu in the spring of 2023, the draft Act was dropped from the proceedings. Therefore, there is currently no regulation at the legal level regarding the disclosure of a court decision that has not entered into force, but case law can be used as an example.
In a decision[7] published in September 2024, the Administrative Chamber of the Supreme Court agreed with lower courts that the court has the right to also publish press releases on court decisions that have not entered into force. The Supreme Court explained the following in the cited order: “Media communication by courts is necessary to ensure the credibility of the judicial system and the independence of the courts, which are weighty values. The court that decided the case is best able to explain the decision made in a specific case. In this way, explaining court decisions helps to better understand the work of the courts and the decisions they have made, as well as to avoid situations where persons who are not parties to the proceedings would misunderstand or distort the positions reflected in the court decision. To achieve this, it may be necessary for the court to explain to the public the reasons given in the court decision that has not yet entered into force.”[8] The Supreme Court found that since the purpose of publishing a press release about a court decision that has not entered into force is to introduce the public to the main positions of the decision, the press release prepared by the court is essentially considered to be a publication of the court decision and the court must take into account the substantive conditions provided for by law, i.e. when publishing a press release, it must consider, on the one hand, the public interest in receiving information about a court decision that has not entered into force and, on the other hand, the interests of the parties to the proceedings.[9]
Guidelines for using social media
In 2023, the Council expressed its willingness to participate in the preparation of guidelines for the use of social media.
The Supreme Court’s Communication Department is considering three options as working versions: 1) we will prepare indefinite guidelines by ourselves; 2) we will provide general recommendations only;[10] 3) we will study the international guidelines prepared for judges[11] in-depth and draw up guidelines for Estonian judges based on them.
General recommendations as well as international guidelines are available to everyone. The judges can decide for themselves how to proceed. Court communications people are helpful, and judges always have the opportunity to seek advice from their court’s spokesperson on how to conduct their private and professional social media activities to ensure both security and privacy and maintain the good image of the judiciary (including of the individual judge). It is also important to be aware of the various risks associated with internet use. To outline what the social media usage guidelines cover, we point out the following areas:
- general information to consider when using social media (knowledge of how social media works and the risks associated with its use);
- self-presentation (use of your name or a pseudonym, profile picture; information intended for public and limited communication groups);
- content creation, reactions (likes and dislikes, comments), content sharing, memes;
- posts: photos and videos (a picture is worth a thousand words), written posts, reviews, appeals (including fundraising), correct use of language, use of emojis, the distinction between value judgements and factual statements, compliance with copyright laws;
- friends and relationships on social media;
- privacy and security (posts about location and activity).
It is also necessary to think about training on what social media platforms[12] exist and which ones are more suitable for use by judges, how these platforms work, explaining the conditions and opportunities for participation and the benefits of participating in them.
Opinions of the Council in 2024
According to the Code of Ethics, the Council’s competence is limited – it must proceed from the assumption that the judge is asking about themself and that all the facts presented in the question are true. In 2023, the Council expressed the position that the Council cannot establish the facts underlying the question or hear the questioner or a third party, including the judge on whose conduct an opinion is sought. The Council cannot verify whether what is presented is true or whether it is biased by the subjective view or private interest of the questioner.
We are happy that increasingly, members of the Council are being directly approached with the question, “Is it okay to behave like this?” If a judge’s gut feeling tells them that their behaviour is not in conflict with ethical standards, but there is a slight doubt, there is no need to inquire with the Council every time. It is often enough for them to ask a colleague or a member of the Council for a second opinion.
In 2024, two inquiries were submitted to the Council. In one case, the request was submitted by a party to the proceedings. This gave rise to a discussion about who has the right to appeal to the Ethics Council of Judges. A member of the Council consulted with professional ethics expert Aive Pevkur, who expressed the opinion that there is no prohibition under the Code of Ethics. It is the discretion of the Council to refuse to resolve appeals submitted by non-judges, to resolve inquiries from non-judges without publicly announcing that non-judges may also appeal to the Ethics Council of Judges, or to inform the public that anyone may appeal to the Ethics Council of Judges. Aive Pevkur stressed that it is good from a societal perspective and gratifying from a theoretician’s perspective when people notice ethical violations. The Council was unanimous in deciding that it could not give an opinion, but responded to the inquirer personally. In addition to the information on the matter, we explained that if a statement is submitted to the Ethics Council, drawing attention to the judge’s inappropriate behaviour or other violation of ethical standards that requires fact-checking and/or may be the basis for disciplinary proceedings, the Ethics Council forwards the statement to the chair of the county court where the judge serves.
The second appeal is of significance in distinguishing between the duties of a judge arising from the law in managing and organising action proceedings in civil court proceedings and the rules of the Code of Ethics. The opinion was prepared at the turn of the year and is therefore numbered 1/2025.
- Is it consistent with the requirements of judicial ethics for a judge in a civil case to clearly state to the parties how they intend to adjudicate the dispute before making a decision?
For example, is the evidence presented sufficient? How do they intend to apply the law? What assessment do they intend to make of the facts based on the evidence, including whether they intend to grant or dismiss the claim?
- Is there a requirement in civil court proceedings that a judge may not hint to the parties how they intend to adjudicate the case before making a decision, and would doing the opposite be a violation of judicial ethics?
In giving its opinion, the Council considered sections 2, 14 and 16 of the Code of Ethics to be relevant.
The position of the Ethics Council
The Ethics Council addresses the question raised in the context of civil proceedings, specifically action proceedings.
Within the framework of the question posed, a distinction must be made between the obligations that apply to a judge under the law and ethical requirements that must be taken into account, particularly in situations that are not precisely regulated by law.
The Code of Civil Procedure establishes a number of obligations that a judge must fulfil when adjudicating a civil case. If the judge fulfils all these obligations, they must discuss with the parties the issues on which the resolution of the case depends, what substantive law norm is applicable, what circumstances are relevant, and who has what to prove.
Neither the Code of Ethics for Judges nor anything else imposes an obligation on a judge to refrain, within the framework of a specific legal action, from expressing views to the parties to the proceedings of a specific claim regarding what the resolution of a specific claim depends on, what the prospects are for adjudicating a specific civil case, whether the parties should enter into a compromise under certain conditions, etc.
A judge must be impartial and fair in administering justice and treat the parties to the proceedings equally. Following this, the judge may announce during the proceedings how they would resolve a specific issue or the entire civil case based on the facts and positions received at that point. The judge must refrain from unnecessary and irrelevant comments or remarks (see Code of Ethics, section 14).
The Ethics Council agreed that the Code of Ethics does not restrict the disclosure of a judge’s opinion to the parties to the proceedings during the proceedings.
Section 16 of the Code of Ethics for Judges primarily prohibits judges from making assessments about ongoing or upcoming court proceedings outside of specific court proceedings. Section 16 does not regulate the discussion of issues concerning the proceedings with the parties to the proceedings and the provision of assessments.
The opinion is supported by Bangalore Commentary No. 60: “Opinion, which is acceptable, should be distinguished from bias, which is unacceptable. It is said that ‘proof that a judge’s mind is a tabula rasa (blank slate) would be evidence of a lack of qualification, not lack of bias’. Judicial rulings or comments on evidence made during the course of proceedings do not fall within the prohibition either, unless the judge appears to have a closed mind and is no longer considering all the evidence”.
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[1] Bangalore Principles of Judicial Conduct. – https://www.unodc.org/documents/ji/training/bangaloreprinciples.pdf (18.03.2025).
[2] Commentary on the Bangalore Principles of Judicial Conduct. – https://www.unodc.org/conig/uploads/documents/publications/Otherpublications/Commentry_on_the_Bangalore_principles_of_Judicial_Conduct.pdf (02.05.2025).
[3] Kommentaar kohtunike käitumise Bangalore’i põhimõtete kohta. – https://www.riigikohus.ee/sites/default/files/%C3%95igusalased%20materjalid/T%C3%95LGE%20Bangalore%20p%C3%B5him%C3%B5tete%20kommentaarid%20(002).pdf (02.02.2025).
[4] Opinion of the Chancellor of Justice on the draft Act amending the Code of Administrative Court Procedure and other acts (574 SE, 14th composition of the Riigikogu). – https://www.riigikogu.ee/tegevus/eelnoud/eelnou/e2ba4498-ddf5-447b-95a6-9aace9256765/halduskohtumenetluse-seadustiku-ja-teiste-seaduste-muutmise-seaduse-eelnou-kohtumenetluse-avalikkus/ (02.02.2025).
[5] Recommendations of the Council for Administration of Courts for media communication by courts, section 7.1 –https://www.kohus.ee/ajakirjanikule/kohtute-haldamise-noukoja-soovitused-kohtute-meediasuhtluseks (03.03.2025).
[6] Draft Act on Amendments to the Code of Administrative Court Procedure and Other Acts (Publicity of Court Proceedings), 574 SE, 14th composition of the Riigikogu. Same.
[7] RKHKm 20.09.2024, 3-21-1243/47.
[8] Same, p 13.
[9] Same, p 21.
[10] E.g. Good practice on freedom of expression for public officials. – https://www.fin.ee/sites/default/files/documents/2020-10/viimane_v2ljendusvabaduse_hea_tava.25.04.pdf (02.02.2025).
[11] – https://www.ncsc.org/consulting-and-research/areas-of-expertise/communications,-civics-and-disinformation/social-media-and-courts/judges
– https://www.venice.coe.int/files/un_social_media/unodc.pdf
– https://portal.ejtn.eu/PageFiles/20509/THEMIS_D_Team%20Czech%20republic.pdf
[12] One of the most popular platforms is Facebook, which is part of Meta (Meta Platforms Ireland Limited). Meta platforms have been criticised for providing personalised advertising, processing personal data, forcing users to provide their data and transferring users’ personal data to the United States. Meta received several fines in 2023 (including fines of 1.2 billion euros and 390 million euros) for data protection violations. See more details: https://aastaraamat.aki.ee/aastaraamat-2023/andmekaitsealased-trahvid-euroopas-2023-aastal (02.02.2025).