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Adoption: 27 March 2015 Public
Publication: 17 April 2015 Greco RC-IV (2015) 1E H
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FOURTH EVALUATION ROUND V
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Corruption prevention in respect of members of
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parliament, judges and prosecutors U
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COMPLIANCE REPORT N
ESTONIA
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Adopted by GRECO at its 67th Plenary Meeting
(Strasbourg, 23-27 March 2015)
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GRECO Secretariat Directorate General I
Council of Europe www.coe.int/greco Human Rights and Rule of Law
F-67075 Strasbourg Cedex Information Society and Action
+33 3 88 41 20 00 against Crime Directorate
I. INTRODUCTION
1. The Compliance Report assesses the measures taken by the authorities of Estonia
to implement the recommendations issued in the Fourth Round Evaluation Report
on Estonia which was adopted at GRECO’s 58th Plenary Meeting (7 December 2012)
and made public on 8 January 2013, following authorisation by Estonia (Greco Eval
IV Rep (2012) 5E). GRECO’s Fourth Evaluation Round deals with “Corruption
prevention in respect of members of parliament, judges and prosecutors”.
2. As required by GRECO's Rules of Procedure, the authorities of Estonia submitted a
Situation Report on measures taken to implement the recommendations. This
report was received on 30 September 2014 (and further updated on 5 January
2015 and 14 March) and served, together with the information submitted
subsequently, as a basis for the Compliance Report.
3. GRECO selected Finland and Hungary to appoint Rapporteurs for the compliance
procedure. The Rapporteurs appointed were Mrs Marja TUOKILA, on behalf of
Finland and Mrs Nóra BAUS on behalf of Hungary. They were assisted by GRECO’s
Secretariat in drawing up the Compliance Report.
4. The Compliance Report assesses the implementation of each individual
recommendation contained in the Evaluation Report and establishes an overall
appraisal of the level of the member’s compliance with these recommendations.
5. The implementation of any outstanding recommendation (partially or not
implemented) will be assessed on the basis of a further Situation Report to be
submitted by the authorities 18 months after the adoption of the present
Compliance Report.
II. ANALYSIS
6. GRECO addressed 19 recommendations to Estonia in its Evaluation Report.
Compliance with these recommendations is dealt with below.
Corruption prevention in respect of members of parliament
Recommendation i.
7. GRECO recommended the introduction of rules on how members of Parliament
engage with lobbyists and other third parties who seek to influence the legislative
process.
8. The authorities indicate that the Anti-Corruption Select Committee has drawn up a
draft document on how members of Parliament engage with lobbyists. It was
subsequently sent in June 2014 to the board of the Riigikogu (which is the Estonian
denomination of the national parliament). The process is still on-going in Parliament
and work will resume under the forthcoming legislature with a new composition of
Parliament which will take up its duties in the second half of March or in April 2015.
The Estonian authorities explain that the future guidelines would be a non-binding
document setting rules both for third parties and for MPs, and that as far as the
latter are concerned, these rules will be similar to those contained in the Code of
conduct adopted in December 2014 (see recommendation ii below). The authorities
point out that several rules contained in the Code are relevant for the management
of relations with third parties and lobbyists, for instance the general rules
concerning honesty and the preservation of the general interest, the need to
disclose if necessary the parties involved in making a decision, the need to explain
the background of choices and decisions.
9. GRECO takes note of the drafting process going on to address the present
recommendation. It encourages the Parliament to finalise or resume – as the case
may be – the work undertaken for the drafting of rules on relations with third
parties and lobbyists, which was undertaken in June 2014. The rules contained in
the Code of conduct adopted recently are also a step in the right direction. But
GRECO would prefer to see these complemented by more specific provisions
addressing for instance the systematic disclosure of who and when relations or
contacts take place, situations where contacts or possible support would be
(in)appropriate, participation in events organised by lobbyists and so on. GRECO
concludes that recommendation i has been partly implemented.
Recommendation ii.
10. GRECO recommended that (i) a Code of Conduct for members of Parliament be
elaborated; and (ii) in order for the provisions of the Code to be effectively applied
in practice, an efficient mechanism of supervision and sanction, which takes into
account the specific nature of the parliamentary mandate, be established.
11. The authorities report that in 2012 a working group composed of members of
parliament (MPs) from each political group was set-up to draft a code of conduct for
MPs. On 17 June 2014, the draft was finalised, together with a draft law to amend
the Status of Member of Parliament Act (SMPA). After it was approved by the
Council of Elders of the Riigikogu, the Code was finally adopted on 17 December
2014. The English equivalent of the Code’s title is “Good practices of the Riigikogu”.
It contains a series of general principles as well as a set of specific provisions on
gifts and conflicts of interest, among others. As for the second part of the
recommendation specifically, the Code provides for a mechanism to deal with cases
of non-compliance with the Code; these are examined by the Anti-Corruption Select
Committee, the role of which is also increased in respect of confidential counselling
(see also recommendation vii hereinafter).
12. GRECO takes note of the above and appreciates the fact that an English translation
of the Code of conduct was made available by the Estonian authorities. The Code
takes the form of a two page document drafted in a format easy to read and
composed of 17 bullet points. 15 of these refer to obligations of the MPs 1, the last
two ones refer on the one hand to the need for MPs to “make all efforts to act in
good faith in compliance with the Code”, and on the other hand to advisory and
dispute-related matters including the role of the select committee:
16th bullet of the Code of conduct for MPs
“A member of the Riigikogu has the right to ask for advice from the Anti-Corruption Select
Committee of the Riigikogu in matters included in the Select Committee’s competence. A member
of the Riigikogu shall discuss other disputed matters inside his or her political fraction. The Select
Committee shall also address cases in its competence that raise doubt of whether a member of
the Riigikogu has acted appropriately and in compliance with the Code of Conduct of Members of
the Riigikogu.”
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These concern both a) general principles such as the duty for MPs to be guided by the interests of the people
and the country (first bullet), to adopt clear and reasoned views (10th bullet), not making promises that one has
no competence to fulfil (15th bullet) and b) principles which are specifically related to integrity: not undertaking
obligations which could cast doubts on the MP’s honesty (third bullet), avoiding situations which could cast
doubts on the impartiality of the MP’s decision (fourth bullet), refraining from accepting higher than usual
hospitality which could cast doubts on the MP’s honesty, fairness and impartiality and may cause a conflict
between official duties and private interests (fifth bullet), prohibition of gifts or services – in connection to the
duties performed as an MP – exceeding the limits of usual politeness unless they comply with generally
accepted diplomatic or international practices or are donations permitted by law (sixth bullet), obligation to use
State property prudently and purposefully (eighth bullet), duty to avoid conflicts of interest arising in the course
of parliamentary work and to disclose such occurrences prior to discussing the matter concerned (ninth bullet),
prohibition to disclose sensitive information or to use it for personal gain or to the benefit of others (14th bullet).
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13. The above code takes into account (and is not limited to) integrity issues and it
addresses broadly the concerns expressed in the Evaluation Report in relation to
the absence of rules of conduct: Estonia has thus positively responded to the first
part of the recommendation. As for the second part of the recommendation, the
information submitted by Estonia is not specific and detailed enough for GRECO to
conclude that an efficient mechanism of supervision and sanction has been
established. Neither does the webpage of the Estonian parliament on the Anti-
Corruption Select Committee2 provide any meaningful clarification on the actual
competence of the Committee (whether it is competent to ensure compliance with
the Code in its entirety), the powers at its disposal, the sanctions applicable to MPs
who do not comply with the Code etc. In their latest comments, the Estonian
authorities indicate that the purpose of the Code is not to lead to sanctions.
Additional measures would require legislative changes as the Board of Parliament
has no competence to establish enforcement mechanisms. They point out that in
any event, corruption-related acts fall under the competence of the criminal justice
bodies. GRECO recalls that one of the purposes of preventive standards and
measures is to address situations which can involve a risk of corruption or do not
(yet) constitute a criminal offence. Many European countries have measures in
place to ensure the parliament’s internal discipline and compliance with professional
standards (for example warnings, suspension of certain rights or benefits, exclusion
from committees, naming and shaming); GRECO cannot see why this kind of
measures cannot be applied in Estonia as well. Estonia thus needs to pursue its
efforts in the area of supervision and sanctions to ensure that MPs comply with the
newly adopted Code.
14. GRECO concludes that recommendation ii has been partly implemented.
Recommendation iii.
15. GRECO recommended that (i) the existing conflicts of interest regulations be made
applicable to members of Parliament and subject to effective supervision; and (ii)
detailed guidelines be developed within Parliament containing practical examples of
conflicts of interest which are or may be encountered by members of Parliament,
including those arising specifically from pecuniary interests.
16. The authorities, on the first part of the recommendation, point out that the new
Anti-Corruption Act (ACA) came into force in April 2013 and that further
amendments are needed to address the various issues raised by the Act. This will
be done with a single amending law which is expected to be discussed and adopted
in 2015.
17. As for the second part of the recommendation, the authorities indicate that the
Anti-Corruption Select Committee has prepared a document consisting of practical
examples of situations involving the acceptance of gifts and conflicts of interest.
This document, which can be seen as equivalent to a manual on the prevention of
conflicts of interest, was sent to the Board of the Riigikogu on 27 June 2014 for
discussion and it was published on 13 March 20153.
18. Moreover, the Code of Conduct mentioned under recommendation ii above
(paragraph 10 et seq.) states under the ninth bullet that: “A member of the
Riigikogu shall not let his or her personal interests affect his or her official duties. If
[s/he] has personal interests related to a draft act or decision to be adopted and
those interests are not listed in his or her declaration of economic interests but may
2
http://www.riigikogu.ee/index.php?id=42700&parent_id=34615
3
http://www.riigikogu.ee/public/Riigikogu/Dokumendid/Hea_tava_kaasusedET.pdf
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cast doubt on his or her objectivity, [s/he] shall disclose those interests before the
discussion.”
19. GRECO takes note of the above. On the first part of the recommendation, it recalls
that the Evaluation Report had taken into consideration the content of the then bill
providing for a new Anti-Corruption Act (ACA). GRECO was concerned that the
revised provisions will continue to have a limited application in respect of members
of Parliament, that the new definition of a procedural restriction is so broad that it
may be rarely applied in practice and that the new ACA does not explicitly stipulate
whether a person or a legal entity with whom an official has a private business
relationship should be regarded as a “connected person” for the purposes of the
ACA. Estonia now indicates that the ACA will be amended in 2015 to address those
issues but for the time being no tangible measures have been taken. As for the
second part of the recommendation, a document providing guidance was published
on 13 March 2015. The five-page document contains a series of examples of
situations and the conduct expected in each case: informing the committee,
advisability of not participating in the vote, refraining from entering into a contract,
possibility to accept the offer or benefit/gift and so on, as the case may be. GRECO
is pleased to see that this part of the recommendation has thus been addressed.
20. GRECO concludes that recommendation iii has been partly implemented.
Recommendation iv.
21. GRECO recommended in order to clarify and facilitate the implementation of
relevant provisions of the Anti-Corruption Act, that internal rules and guidance be
provided within Parliament on the acceptance of gifts, hospitality and other
advantages and compliance by parliamentarians with the aforementioned rules be
properly monitored.
22. The authorities refer to the information supplied in respect of the second part of
recommendation iii discussed above (paragraph 15 et seq). As it was indicated, the
guidance document published on 13 March contains practical examples of situations
involving the acceptance of gifts and conflicts of interest and it should be seen as a
manual. Moreover, the Anti-Corruption Select Committee has prepared a draft
document which outlines basic rules for receiving gifts/hospitality or other benefits:
distinction between personal gifs and gifts for the institution, the need to inform,
whom to inform and so on. This draft still needs to be approved by the Board of
Parliament. In order to keep the content pertinent given the variety of possible
situations that may arise in practice, the Anti-Corruption Select Committee is
planning to conduct a survey extending to the members of the Riigikogu as well as
the structural units (the officials of standing committees) and the management of
the Chancellery.
23. GRECO first of all recalls that this recommendation was addressed to Estonia given
a series of issues raised by Section 26 (2) of the Anti-Corruption Act (ACA) in force
at the time of the on-site visit4 and in planned amendments (see paragraphs 48
4
For the sake of clarity, the text of the provision - as it appears in the replies to the questionnaire - is quoted
here:
§ 26 of the Anti-Corruption Act in force at the time of the evaluation.
Restriction on acceptance of gifts
(1) An official shall not solicit, in connection with his or her duties of employment, gifts or other benefits made
or granted by persons to him or her, his or her close relatives or close relatives by marriage.
(2) An official shall not accept gifts or consent to the benefits which are made or granted to him or her, his or
her close relatives or close relatives by marriage, and the acceptance of which may directly or indirectly
influence the impartial performance of his or her duties of employment or service.
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and 49 of the Evaluation Report). In particular, interviews had showed that the
wording was criticised for it ambivalence and for leaving too much room to
discretional interpretation.
24. Having this in mind, GRECO takes note of the information provided by Estonia on
the recently adopted document containing examples of situations and on the
drafting of internal rules on gifts. This project still needs to be finalised and GRECO
will need to re-examine the content of these rules when once they are adopted and
become available in English
25. GRECO also notes a series of changes that the authorities do not refer to. First of all
– see recommendation ii and footnote 1 above – the Code of conduct for MPs
adopted in December 2014 contains certain restrictions on the acceptance of
hospitality, gifts or services (5th and 6th item of the Code):
• A member of the Riigikogu shall refrain from accepting higher than usual hospitality that may
cast doubt on his or her honesty, fairness and impartiality and may cause a conflict between
official duties and private interests.
• A member of the Riigikogu shall not accept gifts or services related to his or her duties and
exceeding the limits of usual politeness, unless they comply with generally accepted diplomatic or
international practices or are donations permitted by the law.
26. At the same time, it would appear that Section 26 has been repealed in the current
version of the ACA adopted in 2013, of which Estonia provided a copy (see footnote
5) and that gifts are at present covered by its Section 4 (this information is taken
from the new situation concerning prosecutors – see recommendation xvi):
§ 4 of the Anti-Corruption Act - Income derived from corrupt practices
(1) Income derived from corrupt practices is the proprietary or other benefits offered to the official
or any third person due to his or her official duties or demanded by the official, and benefits
received in violation of the obligations of the official. Benefits, which cannot be associated with
official duties or which are unambiguously understood as common courtesy, shall not be deemed to
be corruptive.
(2) An official shall immediately give notification to his or her agency or the person or body who has
the right to appoint him or her of accepting benefits which can be associated with official duties. An
official shall refuse to accept a benefit defined as income derived from corrupt practices or, if this is
impossible, deliver the benefit immediately to his or her agency or the person or body who has the
right to appoint him or her. If delivery of the benefit is impossible, the official shall pay the market
value of the benefit instead of this. The delivered benefit or the value thereof in money shall be
transferred into state ownership or returned, if so provided by law.
27. Secondly, as indicated in relation to recommendation vi and vii discussed
hereinafter, the revised format for the declaration of assets and interests reportedly
extends also to gifts received. However, the basis for this remains unclear since the
Anti-Corruption Act (ACA) itself does not address at all the declaration of such
benefits. The only provision which seems relevant is Section 14(2):
(3) Gifts received in violation of the restrictions provided for in subsections (1) and (2) of this section shall
belong to the employer of the corresponding official, unless otherwise provided by an international custom or
diplomatic etiquette.
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(2) A declaration shall contain information concerning the following in respect of the declarant
during the year before the submission of the declaration:
1) received proprietary and other benefits, which market value exceeds the income subject to
social tax received by the declarant in his or her office during the last four months, or if the
income received is smaller, four times the minimum monthly wages established by the
Government of the Republic pursuant to the Employment Contracts Act. The value of benefits
from one source shall be added. Benefits which the declarant received from the persons
specified in clause (6) 3) of this section shall not be declared. The persons who grant the
benefits and the value thereof shall be set out in the declaration;
2) granted benefits, which market value exceeds the income subject to social tax received by
the declarant in his or her office during the last four months, or if the income received is
smaller, four times the minimum monthly wages established by the Government of the Republic
pursuant to the Employment Contracts Act. The value of the benefits granted to one person
shall be added. Benefits which the declarant granted to the persons specified in clause (6) 3) of
this section shall not be declared. The persons who received the benefits and the value thereof
shall be set out in the declaration.
28. This Section requires the declaration of proprietary and other benefits which exceed
a significant amount. This logic appears to be at variance with GRECO’s
expectations as well as with the 5th and 6th item of the Code and Section 4 above as
the only gifts and other benefits which can be accepted are those which are a sign
of courtesy / usual politeness and those which are not related to the duties. In
conclusion, Estonia clearly needs to ensure clear and consistent rules are in place
for members of parliament on gifts, hospitality and other advantages which are
permitted, including for their declaration and registration. GRECO is also looking
forward to the finalisation and adoption of the draft guidance document announced
by Estonia, the content of which reportedly addresses the present recommendation.
29. As for the monitoring of compliance with the 5th and 6th item of the Code of Conduct
and any other pertinent rules (another requirement of the present
recommendation), the assessment in relation to the second part of
recommendation ii applies here as well: in the absence of further details and
explanations on the way the supervision is applicable to the entire content of the
Code, GRECO cannot conclude that this matter has been addressed. In conclusion,
more dedicated efforts are required from Estonia to implement the present
recommendation in full.
30. GRECO concludes that recommendation iv has been partly implemented.
Recommendation v.
31. GRECO recommended that (i) a study be carried out in order to identify post-
employment restrictions for members of Parliament which might be required to
avert conflicts of interests and ii) post-employment restrictions be regulated, if
necessary.
32. The authorities report that a study was conducted in May and June 2014 by the
Research Department of the Riigikogu, which consisted of a legal analysis and a
media analysis based on a sample of individual situations from two subsequent
legislatures (XI and XIIth). The study thus covered 70 former parliamentarians and
it took into account possible controversies raised in media material published in the
period 1 January-31 December 2013. Its objective was to identify conflicts of
interests arising within a certain period of time after an MP has left the Parliament.
The analysis of possible relations between the parliamentary tasks and the
subsequent employment did not reveal any conflicts of interest situations. As a
result, the study did not support the introduction of systematic post-employment
restrictions. Instead, it stressed the need to put emphasis on value-education and
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changing behaviour and attitudes. It also concluded that the Constitution does not
prevent the introduction of post-employment restrictions as a whole, it rather
suggests that any restrictions should take into consideration the principle of
proportionality.
33. GRECO appreciates that research was conducted in a way which addresses the
underlying considerations of the first part of the recommendation, which has thus
been addressed. As for the second part of the recommendation, Estonia has not
considered it necessary in the light of this work to regulate post-employment
restrictions for parliamentarians.
34. GRECO concludes that recommendation v has been implemented satisfactorily.
Recommendation vi.
35. GRECO recommended that the authorities of Estonia take determined measures to
ensure a more in-depth examination of economic interests’ declarations submitted
by members of Parliament pursuant to the Anti-Corruption Act, amongst others by
strengthening operational and administrative capacities of the Parliament’s Select
Committee on the Implementation of the Anti-Corruption Act.
36. The authorities refer to the new Anti-Corruption Act adopted in 2013 (thus
replacing the earlier version of 1999)5, which aims at making the work of the Anti-
Corruption Select Committee of the Riigikogu more effective. Improvements include
an extension of the amount of data to be declared and of the competence and the
rights of the Committee. On the basis of the revised Act, an electronic register of
declarations of interests was established in 2014. These are publicly available and
therefore also subject to public scrutiny including by the media. The latter have, so
far, actively published and analysed declarations of politicians, and they have
sought clarification from MPs in respect to their loans, among other issues.
37. The register is interconnected with other data collection systems, which makes it
easier to check and analyse the data entered by the members of the Riigikogu, and
to supervise compliance with the restrictions on activities of MPs. In order to
perform its functions, the Committee has the right to summon persons and request
access to information and documents that enable to examine in depth the interests
and economic activities of the members of the Riigikogu. In addition, the
supervising official is entitled to obtain information on the declaring official and
his/her assets and interest from other public databases, and to make queries to all
persons and entities, including banks, for control purposes.
38. The new system for declaring assets and interests, effective as from 2014, enables
every declaring official to use a pre-filled form and to file the declaration
electronically6 after possible corrections and additions have been made; the official
may correct the data but the supervising official can see the history of changes. The
declaration is instantaneously available to the supervising official(s) and - with
some limitations - to every person who is entitled to log into the system. The
declaring official receives reminders by e-mail twice before the submission deadline
elapses. The supervising official may further leave comments in the system for the
5
https://www.riigiteataja.ee/en/eli/521082014007/consolide (as of 22.09.2014)
6
The pre-filled form contains data on: the real estate of the official; the shares and securities owned by the
official directly, or indirectly - if the share exceeds 10% of total assets; the vehicles owned by the official
(except ships and aircrafts); the income, including domestic dividends, for the last year; indication of family
members and of place of residence; membership in boards of legal persons (as from 2015); possible donations
made to certain charities or organisations. The declarations also include data concerning: donations made to
other entities or persons; benefits received (including gifts) since the revision of the Act in 2013; loans given or
received; side activities; informal family relations; foreign dividends, if not declared in the income declaration;
property used during the last year; other relevant interests.
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attention of the person filing a declaration. The declaration submitted is accessible
to the public for three years since the date of submitting, and is preserved in the
system for seven years after which it is destroyed automatically. The supervising
official can access the declaration during that period, e.g. in order to compare the
data. The declaring official is notified if somebody has inspected the declaration.
The Estonian authorities take the view that the system is highly efficient for
collecting and processing data, even if some of the data may be irrelevant to assess
the official's corruption risks. They also underline the user-friendliness for the
declaring official, the supervisors and the public at large. Filling and submitting the
declaration takes only half an hour, thanks to the pre-filled form.
39. The administrative capacity of the Committee is strengthened by the support of
other structural units of the Chancellery of the Riigikogu (first of all, the Research
Department), by rearranging the division of tasks among the employees serving the
Committee, and the Committee also has the right to authorise persons who are not
part of the staff serving the Committee to perform supervision activities if
necessary.
40. GRECO takes note of the above information. It is pleased to see that the process
aimed at strengthening the capacity of the Parliament’s Select Committee on the
Implementation of the Anti-Corruption Act (the “Committee”) has been pursued and
that it now has clear possibilities to cross-check data, to summon persons and to
seek additional information. The computerisation of the data collection and storage
system appears to be an important new step. The Evaluation Report had pointed to
the apparent inability of the Committee to perform its tasks in an effective manner
and warned against the “outsourcing” of the control function to civil society and the
media. GRECO assumed that this was primarily the result of limited operational and
administrative capacities of the Committee, rather than reluctance of such a peer
control mechanism. But in their latest comments, the Estonian authorities explain
that the purpose of the declaration system is to ensure a preventive effect through
the publicity of data concerning declaring officials, and that there is no need to
intensify verification by devoting additional resources and personnel to this task.
GRECO considers that since the Select Committee is now reportedly well equipped
to perform its tasks, it needs to demonstrate that its verification work is also
improving, given the recommendation’s main underlying concern. For the time
being, Estonia does not provide convincing information demonstrating that the
Committee is taking a more determined approach in its supervision. At the time of
adoption of the present report, the authorities confirmed that part of the
information is not supplied automatically from existing databases, for instance
assets held abroad, side activities, benefits in general, possible loans and so on.
These would require to be equally subjected to in-depth examinations with the
appropriate methodology, whether on the basis of samples or specific risk factors,
randomly, systematically or otherwise.
41. GRECO concludes that recommendation vi has been partly implemented
Recommendation vii.
42. GRECO recommended (i) the establishment of a specific source of confidential
counselling to provide parliamentarians with advice on ethical questions and
possible conflicts of interest in relation to their legal duties; and (ii) the provision of
regular awareness raising activities for members of Parliament (all deputies but
especially the new ones) covering issues, such as conflicts of interest, acceptance of
gifts, hospitality and other advantages, outside employment, disclosure of interests
and other obligations related to corruption prevention.
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43. The authorities, in connection with the first part of the recommendation, indicate
that the members of the Riigikogu can already obtain confidential counselling on
such issues as avoiding conflicts of interests, disclosure duties (on gifts, advantages
and interests) and other preventive measures from the Anti-Corruption Select
Committee and the employees of the Chancellery of the Riigikogu (standing
committees, Research Department, Personnel Department, management, etc.), but
also from the political groups and permanent committees. On the second part of
the recommendation specifically, a general training event on the declaration of
interests and to present the Anti-Corruption Act’s provisions was organised in
spring 2014 for the members of the Riigikogu. A total of 35 members and other
officials attended the event which lasted one hour on two days and focused on the
filing of declaration of interests and on the implications of the Anti-Corruption Act
(material was sent to the participants beforehand). In addition, political groups
organised similar events on the same subject for their members. Further
awareness-raising training will be introduced when the manual on conflicts of
interest is adopted (see recommendation iii). When the Riigikogu assumes office in
its new composition in 2015, several awareness raising activities will be organised
for all parliamentarians according to the established practice and this will give an
opportunity to introduce inter allia the provisions of the Anti-Corruption Act, the
regulations concerning the disclosure of gifts, advantages (see recommendation iv
above) and interests, and to present situations where conflicts of interest are to be
avoided. Also, an online training programme/ self-teaching tool on ethics and
conflicts of interest and other relevant aspects is under discussion and an electronic
platform to this end is also being discussed.
44. GRECO takes note of the above information concerning the first part of the
recommendation. It would appear that a multiplicity of sources of advice,
information and counselling are now in place. At the time of adoption of the present
report, the Estonian authorities have provided assurances that confidential
counselling can also be given to individual parliamentarians confronted with
concrete situations which could potentially be problematic. In the context of
Estonia, GRECO considers that the measures in place appear to be sufficient. On
the second part of the recommendation, GRECO welcomes the first initiatives
implemented to raise awareness among parliamentarians about some of the rules
on integrity. Further plans are announced to raise awareness on a broader range of
issues and to establish a self-training tool on integrity issues. GRECO is looking
forward to their implementation.
45. GRECO concludes that recommendation vii has been partly implemented.
Corruption prevention in respect of judges
Recommendation viii.
46. GRECO recommended that (i) decisions on appointment to the post of first and
second instance court judge be subject to independent appeal procedure; and (ii)
objective criteria for the professional advancement of judges be introduced with the
aim of enhancing its uniformity, predictability and transparency.
47. The authorities indicate that in respect of the first part of the recommendation, the
Ministry of Justice and the Supreme Court have reached the conclusion that the
appeal procedure regarding decisions on appointment to the post of first and
second instance court judge is independent. They consider that the role of the
President in this matter is rather ceremonial and balancing and therefore, that the
issue highlighted by GRECO is purely hypothetical as there has not been any
instance where a decision on appointment to the post of first and second instance
judge was appealed. Moreover, questioning the impartiality of the Constitutional
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Review Chamber on the mere grounds that they are members of the Supreme
Court sitting in plenary is a preconceived view which is not substantiated by any
legal basis. The Supreme Court as well as its chambers are independent and
serving as the highest court instances.
48. In response to the second element of the recommendation, the Council for the
Administration of the Courts has advised the Supreme Court to review the situation
and to introduce objective criteria for the professional advancement of judges by
the end of 2014. The Council considered that the plenum of the Supreme Court has
the competence to establish such criteria, which was done in 2014. Objective
criteria for the appointment of second instance court judges were thus discussed in
January 2015 and subsequently adopted by the Supreme Court on 17 February .
49. GRECO takes note of the above. As regards the first part of the recommendation,
Estonia has not taken any measure to date. As for the second part of the
recommendation, GRECO is pleased to see that some criteria have been introduced
for the position of second instance court judge; the English version of the document
provided by the Estonian authorities listing these criteria refers to 1. Quality of
adjudications; 2. Skills for the organisation and managing of proceedings; 3.
Specialisation; 4. The overall background including level of education, self-
development, research activities and experience; 5. Personal qualities to work in a
collegial court. GRECO hopes that similar criteria will be developed for other judges
who have particular responsibilities in the judiciary, for instance chairpersons
including in first instance courts, as they also carry out managerial functions.
50. GRECO concludes that recommendation viii has been partly implemented.
Recommendation ix.
51. GRECO recommended that the Estonian authorities consider introducing a system
of periodical quality assessments of a judge’s professional performance, based on
standardised and objective criteria, with due regard being paid to the principle of
judicial independence.
52. The authorities of Estonia report that the Council for the Administration of the
Courts (CAC) has asked the Quality Assessment Working Group to review the
system of periodical quality assessments of a judge`s professional performance.
The latter, in response, has agreed to propose to the Council to elaborate a
proposition with a view to add to the quality standards of the court management
the principle that the chairperson of each court has the obligation to conduct an
annual development interview during the first three years for newly appointed
judges and at least once every five years for the other judges. The plenum of the
Supreme Court has enacted the methodological guidelines for the implementation
of development interviews for all judges. For the newly appointed judges, at the
request of the Chief Justice of the Supreme Court, the working group is presently
developing quality assessment sheets for judgements rendered in the first instance
courts; these assessments will be done by the second instance court judges.
53. GRECO takes note of the measures reported above concerning the progressive
introduction of an appraisal system. This system will be applicable both for newly
appointed judges and for judges already in place, thus providing for useful objective
elements when decisions on promotions are made (see recommendation viii
above).
54. GRECO concludes that recommendation ix has been implemented satisfactorily.
11
Recommendation x.
55. GRECO recommended that (i) a deliberate policy for preventing and managing
conflicts of interest and corruption risks be developed within the judiciary; and (ii)
the system be put in place to ensure compliance by judges with the aforementioned
policy, including the Code of Ethics of the Estonian judges.
56. The authorities refer to the information provided concerning the implementation of
recommendation xii hereinafter, i.e. the recent designing of a standard training
model and curriculum on ethics and preventing and managing risks of conflicts of
interest and corruption (and its implementation in 2014 and 2015), the existing
Code of Ethics, the new duty for all chairpersons of courts to ensure compliance
with the Code and that judges and clerks under their responsibility are aware of the
Code and corruption risks and are knowledgeable on the prevention and
management of conflicts of interest – including by arranging training. Heads of
courts are also encouraged within their body to supervise compliance with the
declaration duty, as mentioned also below in paragraph 61. The statistics available
show that the situation is improving: there were no disciplinary proceedings in
2012, five proceedings took place in 2013 (the delaying of cases concerned two of
these and disciplinary measures were applied in both cases; among the three
remaining cases for other breaches, one case was concluded without violation of
duties), and in 2014, five proceedings were initiated against eight judges (six of
whom for delaying of cases and three were sanctioned disciplinarily for this; the
other two cases involved other breaches of duty and sanctions were applied).
57. GRECO takes note of the above information. As regards the first part of the
recommendation, additional training efforts are supported by a more active role
devoted to the courts’ chairperson and the Estonian authorities provide statistical
data demonstrating the preliminary results of the current efforts and a positive
trend of the disciplinary response. The Evaluation report had suggested a series of
lines of action such as a more rigorous approach with judicial misconduct
(especially the delaying of cases), a stricter application of disciplinary measures and
an effective use of reporting duties concerning misconduct contained in the Anti-
Corruption Act and the Code of Ethics. It would appear that the main underlying
concerns for this part of the recommendation are being addressed, including a
stricter approach with regard to the delaying of cases. On the second part of the
recommendation, GRECO welcomes that the chairpersons of the courts have been
given new responsibilities to support better enforcement and awareness of the
Code of Ethics, and the prevention and management of conflicts of interest. As
indicated above, statistics also show a positive trend when it comes to the
disciplinary response. All this is in line with the objectives of the second part of the
recommendation.
58. Overall, GRECO concludes that recommendation x has been implemented
satisfactorily.
Recommendation xi.
59. GRECO recommended that additional measures be put in place to ensure an
effective supervision of economic interests’ declarations filed by judges pursuant to
the Anti-Corruption Act.
60. The authorities recall that all judges are required to submit annually a declaration
of interests which is made public. They point out that the new ACA entered into
force on 1st April 2013 and its mechanism for the declaration of assets and interests
12
(section 12 of the ACA7). Those declarations are publicly accessible. A declaration
shall be submitted by all judges as referred to in section 13 (1) 1) of the ACA. The
authorities also reiterate the information provided in respect of the implementation
of recommendation vi (regarding the declaration system for MPs) and referring to
a) the fact that the new system for the declaration of assets and interest enables
every declaring official as from 2014 to submit declarations in an electronic format;
b) the fact that the declaration submitted is immediately available to the
supervising official(s) and other authorised persons who have access to the
database; c) the information which is pre-filled in the system including on
membership in the boards of legal persons (as from 2015) and information to be
filled by the declarant him/herself8; d) the possibility for the declaring official to
correct data at any time and for the supervising official to follow these updates; e)
the user-friendly nature of the system with reminders sent to declaring officials; f)
the ability of the supervisor to leave comments for the declarant in the system and
to obtain information on the official and his/her situation from other public
databases and to request such information from any person or entity, including
banks, while controlling the declaration; e) the timeline for the accessibility and
retention of declared data.
61. The Council for the Administration of the Courts has entrusted the chairpersons of
the courts to control the declarations of the judges (ancillary activities etc.) working
at their court as the declarations are accessible by the public. Declarations are
publicly available and therefore also subject to public control (including the media,
which have very actively scrutinised the publication and content of declarations).
62. The authorities further provide a long list of information concerning existing
provisions of the Courts Act on judges’ access to state secrets, the evaluation and
background check of candidates for judicial office, as well as provisions of the State
Secrets And Classified Information Of Foreign States Act on security clearance
mechanisms. They point out that candidate judges are thoroughly checked by the
Security Police including as regards their property9. Judges in exercise are subject
to similar controls on the grounds that they are officials who entitled to access
information categorised as State secrets.
63. The Estonian Authorities also point to the following additional mechanisms as
effective tools to prevent corruption risks: a) the application of the code of ethics;
b) rules on the withdrawal and recusal of a judge in a given criminal proceeding
(sections 49, 491 and 50 of the Criminal Procedure Code); c) the existing
incompatibilities and restrictions on ancillary activities; d) training events planned
by the Training Council (see also rec xii).
64. GRECO takes note of the above information. It points out that the checks carried
out by the State security police pursue a specific, different objective and relying on
them for broader supervision might raise other concerns. GRECO recalls that the
underlying considerations contained in paragraphs 135-136 of the Report was the
inadequate supervision of declarations of first and second instance court judges. At
the time of the visit, the Ministry of justice was vested with this responsibility but it
was not up to the task due to over-reliance on the public disclosure, insufficient
human resources allocated to this (one employee) etc. Similarly, the declarations of
Supreme Court judges were under the week supervision of the parliamentary Anti-
7
https://www.riigiteataja.ee/en/eli/521082014007/consolide (as of 22.09.2014)
8
On donations made to other entities or persons; gifts received; loans given or received; side activities;
informal family relations; foreign dividends, if not declared in the income declaration; property used during the
last year; other relevant interests.
9
The format of the application and data to be checked and controlled by the Security Police includes inter alia
information on: phone numbers, addresses for the past 7 years, information on family members, education,
contacts with foreign countries, visits to foreign countries (past 10 years), property (real estate, securities,
loans, additional revenue, accounts), hobbies
13
Corruption Select Committee (see recommendation vi), an issue which has not yet
been completely resolved. GRECO understands from the above and the latest
explanations provided by Estonia that the supervision of declarations has been
reviewed. The Estonian authorities explain that the supervision of declarations filled
by all categories of judges was transferred to the Anti-Corruption Select Committee
of the Riigikogu and that the chairpersons of the courts are encouraged to inspect
declarations of judges under their responsibility as far as information already public
is concerned. GRECO recalls the considerations under recommendation vi above, in
particular the fact that important data still needs to be supplied by the declaring
person and that all data is not made automatically available from other databases
already checked by other authorities (tax administration, public registries and so
on). GRECO considers that supervisory responsibilities of the Committee and
chairpersons need to be clear and effectively used. As it was already indicated, it
would appear that Estonia still relies excessively on the principle of public
disclosure. In conclusion, GRECO expects more tangible progress in the supervision
of declarations of interests filed by judges.
65. GRECO concludes that recommendation xi has been partly implemented.
Recommendation xii.
66. GRECO recommended that dedicated and on-going training programmes be
elaborated for judges focusing on judicial ethics, conflicts of interest (including
recusal and withdrawal), rules concerning gifts, hospitality and other advantages,
declarations of interests and other corruption awareness and prevention measures.
67. The authorities indicate that a standard training curriculum for judges was
developed in the area of ethics as well as preventing and managing risks of conflicts
of interest and corruption. The training model involves inter alia group work and
discussing practical cases. It was first applied in 2014 and the training plan for
judges in 2015 foresees a continuation of the sessions. The Training Council has
decided that this training must become part of the annual training plan. All judges
must attend this training during their first three years as a judge. Two one-day
sessions took place on 25 April 2014 in Tartu and on 16 May 2014 in Tallinn
involved as trainer the chairman of one court who has comprehensive experience in
judicial ethics; he took into account generally prevailing trends as well as the
outcome of GRECO reports. The first sessions were attended by 32 judges
altogether as well as representatives of the Bar Association. They included
interactive case studies. Positive feedback was received from those judges who
attended the courses in 2014 and they showed great interest in these. In 2015, two
similar sessions have been scheduled in March and April in the same cities; 32
judges have registered. Also, an online training programme/ self-teaching tool
addressing inter alia ethics and conflicts of interest is under discussion, while the
possible electronic platform for it is under development.
68. The Quality Assessment Working Group has reviewed the quality standards for
court management and added the obligation for every court chairperson to ensure
that all judges and clerks are informed about corruption risks, are knowledgeable
about preventing and managing the conflicts of interest and comply with the rules
of ethics. Chairpersons may thus organise thematic round tables, direct the judge
or the clerk to the special training provided by the Supreme Courts training
department, carry out personal development interview etc.
69. GRECO welcomes the various measures reported above and concludes that
recommendation xii has been implemented satisfactorily.
14
Corruption prevention in respect of prosecutors
Recommendation xiii.
70. GRECO recommended that objective and transparent criteria be introduced for the
promotion of prosecutors with the aim of enhancing its uniformity, predictability
and transparency.
71. The authorities indicate that an inventory of competences was elaborated, which is
to be used for job descriptions and the filling of all posts. Pursuant to the changes
made, requirements have been set for those categories of posts which may or may
not necessarily be filled via a competition (leading public prosecutor, leading
prosecutor, senior prosecutor, public prosecutors) as well as for the more senior
positions which can only be filled following a competition. The skills and
qualifications required in relevant positions have been determined in 2014 and
enforced on 10.10.2014. They were based inter alia on the criteria listed in the
Middle-Level Civil Service Competency Framework (http://www.avalikteenistus.ee/
index.php?id=40575), and for Chief Prosecutors and Chief State Prosecutors on the
basis of the Senior Civil Service Competency Framework http://riigikantselei.ee/
et/tippjuhtide-kompetentsimudel both adopted in 2013.
72. Moreover, the following chapter and sections have been added to the regulation of
the Minister of Justice (Requirements for organisation of the competition for
prosecutors and for the competitors).
Chapter 31
REQUIREMENTS FOR PERSONS APPOINTED TO POSITIONS OF SENIOR PROSECUTORS, STATE
PROSECUTORS, CHIEF PROSECUTORS AND CHIEF STATE PROSECUTORS
§ 81. Requirements for persons appointed to Senior Prosecutor’s position
(1) A person who shall be appointed to the Senior Prosecutor’s position has to meet the
requirements set out in § 6 of the ruling.
(2) In case of several candidates who meet the requirements, preference is given to a candidate
who meets the following criteria best:
1) extensive legal knowledge and varied professional experience as a Prosecutor;
2) knowledge about the functioning of different parts of the criminal justice system;
3) intellectual capability, including strong analytical skills and good argumentation skills;
4) very good communication and self-expression skills, collaboration and negotiating skills;
5) stress tolerance and decision-making skills;
6) the ability to set an example for others by being reliable, ethical and committed;
7) readiness and skills for representing the Prosecutor’s Office in working groups and before the
public;
8) management skills, including the ability to start processes and keep them running with high
quality, the ability to critically assess and filter information and present it pursuant to the target
group’s needs, the ability to form a team and keep it working, the ability to assess the present
condition of the managed area and identify development needs, the ability to delegate and
motivate, and the ability to regulate the work load of people.
§ 82. Requirements for persons appointed to State Prosecutor’s position
(1) A person who shall be appointed to the State Prosecutor’s position has to meet the
requirements set out in § 6 of the ruling.
(2) In case of several candidates who meet the requirements, preference is given to a candidate
who meets the following criteria best:
1) criteria set out in § 81 (2) subindents 1-7;
2) readiness and skills for representing the Prosecutor’s Office at conferences and in international
communication;
3) proficiency in foreign languages which are required for work;
4) knowledge about the functioning of international criminal cooperation.
15
§ 83. Requirements for persons appointed to Chief Prosecutor’s position
(1) A person who shall be appointed to the Chief Prosecutor’s position has to meet the requirements
set out in § 6 of the ruling.
(2) In case of several candidates who meet the requirements, preference is given to a candidate
who meets the following criteria best:
1) criteria set out in § 81 (2) subindents 1-8 and § 82 (2) subindents 2 and 3;
2) skills for using strategic planning in one’s respective field, so that it would support the
implementation of development goals of the state.
§ 84. Requirements for persons appointed to Chief State Prosecutor’ position
(1) A person who shall be appointed to the Chief State Prosecutor’s position has to meet the
requirements set out in § 6 of the ruling.
(2) In case of several candidates who meet the requirements, preference is given to a candidate
who meets the best criteria set out in § 81 (2) subindents 1-8 and § 82 (2) subindents 2-4 and § 83
(2) subindent 2.
73. GRECO welcomes the above improvements. They address the concerns expressed
in the Evaluation Report as regards the need for greater objectiveness in the
recruitment and promotion to higher positions within the prosecution services,
including the highest levels of responsibility. It concludes that recommendation xiii
has been implemented satisfactorily.
Recommendation xiv.
74. GRECO recommended that the authorities of Estonia consider introducing a system
of periodical quality assessments of the prosecutors’ performance, based on
standardised and objective criteria, with due regard being paid to the prosecutors’
autonomy.
75. The authorities explain that as recommended by GRECO, they have been
considering introducing a system of periodical quality assessments of the
prosecutors’ performance, based on standardised and objective criteria, with due
regard being paid to the prosecutors’ autonomy. A two day seminar-workshop
including both executive and managerial level prosecutors was organised already in
December 2012, in order to set the main criteria that an adequate system of that
kind could be based upon. Since then, based on the main criteria agreed upon at
that meeting, further analysis has been conducted on many levels both in the
Ministry of Justice and the Office of the Prosecutor General. A preliminary model of
a workload (quality) analysis has been drafted the purpose of which is to establish
and agree on certain standards (including the work-load of individual prosecutors
with due regard being paid on complexity of cases etc.). The preliminary model is
currently being analysed and a performance assessment tool for prosecutors is
under consideration. Such a tool is expected to allow for comparisons between
different units and offices as well as between different prosecutors performing
comparable work.
76. GRECO notes with satisfaction that Estonia is considering new tools to assess the
work performed by prosecutors. It would appear from the information provided that
the underlying concerns which had led to this recommendation are being
addressed. GRECO encourages Estonia to finalise this reform.
77. GRECO concludes that recommendation xiv has been implemented satisfactorily.
Recommendation xv.
78. GRECO recommended that (i) the Ethics Code of the Prosecutorial Service be
complemented in such a way as to offer guidance by way of explanatory comments
16
and/or practical examples, particularly with regard to conflicts of interest and
related areas; and (ii) a deliberate policy for preventing and managing conflicts of
interest and corruption risks within the Prosecutorial Service be developed and a
system to ensure compliance by prosecutors with the aforementioned policy,
including the Code of Ethics of the Prosecutorial Service be put in place.
79. The authorities point to the new Code of Ethics which was adopted by the
Prosecutors’ Assembly of 12.04.2013. The code has five chapters dealing with: 1.
General provisions; 2. Rules related to pre-trial and court procedure: it covers i.a.
general principles, honour and dignity, independence, the avoidance of conflicts of
interest (it addresses also gifts and situations of self-withdrawal); 3. Relations with
colleagues and public; 4. Ancillary activities; 5. Implementing provisions: it states
explicitly, i.a., that the code of ethics is to be taken into account by the the
disciplinary committee when deciding on the conduct of a prosecutor.
80. With the new code, the Prosecutors’ Ethics Council was established as a new
structure to ensure the existence an active policy for preventing and managing
conflict of interest and corruption risks. The Council is to be consulted on the
admissibility of a case concerning the action or behaviour of a prosecutor. The
Council also provides general explanations concerning the Code. The Estonian
authorities take the view that the Council has already proven its usefulness,
pointing out that it has already accumulated sufficient “case law” which can be used
to illustrate good practices.
81. On 13 March2014, the council has issued a guide (which is available online on the
internal network for prosecutors) with comprehensive explanatory comments to
conflicts of interest as well as practical examples. These cover inter alia possible
situations of conflict of interest and include explanations, guidance and background
information. In addition to a general overview of ethical issues, the guide puts
emphasis on issues most likely to arise in the prosecutorial service. Explanatory
comments also cover topics like ancillary activities and the use of confidential
information.
82. GRECO takes note of the above information and is pleased to see that a number of
measures have been taken to address this recommendation. GRECO hopes that the
Ethics Council will play an increasing role in future also in the area of integrity-
related policy-making.
83. GRECO concludes that recommendation xv has been implemented satisfactorily.
Recommendation xvi.
84. GRECO recommended that guidelines be developed within the Prosecutor’s Office to
clarify the standards for acceptable courtesy gifts and the procedure for their
reporting.
85. The authorities indicate that pursuant to section 4 (1) of the Anti-Corruption Act
(ACA) in force as from 1 April 2013, an official is prohibited from demanding,
intermediating and receiving income derived from corrupt practices. Income derived
from corrupt practices has been further explained in section 4 (1) of the ACA, with
Subsection 2 explaining what an official should do with such income:
§ 4 of the Anti-Corruption Act - Income derived from corrupt practices
(1) Income derived from corrupt practices is the proprietary or other benefits offered to the official
or any third person due to his or her official duties or demanded by the official, and benefits
17
received in violation of the obligations of the official. Benefits, which cannot be associated with
official duties or which are unambiguously understood as common courtesy, shall not be deemed to
be corruptive.
(2) An official shall immediately give notification to his or her agency or the person or body who has
the right to appoint him or her of accepting benefits which can be associated with official duties. An
official shall refuse to accept a benefit defined as income derived from corrupt practices or, if this is
impossible, deliver the benefit immediately to his or her agency or the person or body who has the
right to appoint him or her. If delivery of the benefit is impossible, the official shall pay the market
value of the benefit instead of this. The delivered benefit or the value thereof in money shall be
transferred into state ownership or returned, if so provided by law.
86. In their latest comments, the Estonian authorities explain that the word “benefits”
(soodustused) – used in the last sentence of the first paragraph – is a broad
concept which includes pecuniary and non-pecuniary gifts and other benefits. They
also refer to a new provision of the Code of Ethics for prosecutors adopted on 12
April 2013 (section (6) 3)) which prohibits prosecutors and their family members
from accepting gifts, heritage, loans or services from parties to proceedings. The
acceptance of gifts has been explained thoroughly in the explanatory notes
published by the Ethics Council and dated 13 March 2014 (see recommendation xv)
with an outline of the legal framework and concrete examples. In the case of
possible conflict of interests, a prosecutor has also the opportunity to turn to the
Ethics Council for advice.
87. GRECO takes note of the efforts made in Estonia on rules and guidance on gifts for
members of the prosecution services. It recalls that Section 26 of the Anti-
Corruption Act (ACA) in force at the time of the visit prohibited officials from
soliciting or accepting gifts and benefits which can undermine directly or indirectly
the impartial performance of duties (see full text in footnote 1 of the present
report). This provision applied to prosecutors – unlike judges who were (are)
subject to specific standards with a strict ban in this area. GRECO therefore
considered that too much discretion was left to the own interpretation of individual
prosecutors. First of all, it would appear that the revised ACA of April 2013, which
does not refer to gifts anymore, is taking a different approach. The margin of
appreciation left to individual prosecutors has been reduced considerably by
authorising only “Benefits, which cannot be associated with official duties or which
are unambiguously understood as common courtesy”. Moreover, the code of Ethics
for prosecutors contains at present a ban (on gifts, a heritage, loans or services),
as in the case of judges. It is however limited to situations where the benefit
emanates from a party to proceedings. Estonia may wish to keep the consistency of
these various new rules under further review, for instance as regards permissible
gifts and their origin. At the same time, the explanatory notes adopted by the
Ethics Council on 13 March 2014 do provide guidance and concrete examples
showing i.a. that even small gifts and favours can be problematic. This responds to
one of the recommendation’s objectives. They do not deal with the disclosure and
reporting of gifts but GRECO understands that this matter is now covered by the
ACA itself: its Section 4 paragraph 2 requires to report to the employing body /
agency any benefit “which can be associated with official duties”. This also responds
to the present recommendation.
88. GRECO concludes that, overall, recommendation xvi has been implemented
satisfactorily.
Recommendation xvii.
89. GRECO recommended that uniform requirements be made applicable to all the
categories of prosecutors as concerns the disclosure of their interests, pursuant to
the revised Anti-Corruption Act.
18
90. The authorities provide a long list of information and rules similarly to that
communicated in response to recommendation xi on the disclosure of interests of
judges, which appears largely unrelated to the specific objectives of the present
recommendation. This includes the fact that candidate prosecutors are subject to
background checks before they are recruited and prosecutors in office are
monitored by the competent police services for State security purposes (the
Internal Security Service of the Security Police) since they belong to the category of
persons who have access to State secret information. In addition, the authorities
refer to the new Anti-Corruption Act (ACA) which entered into force on 1 April 2013
and its Section 1210, according to which obliged officials are required to submit to
the Anti-Corruption Committee of the Riigikogu a declaration of assets and
interests, these declarations being public. The officials concerned are spelled out
listed under Section 13 paragraph 3 ACA: an obligation to submit a declaration
exists only for officials who have the competence to dispose of public resources or
to conduct criminal or administrative proceedings and where there are no measures
that are more efficient to prevent corruption risks. This formulation covers the
heads of government agencies and judges but not the prosecutors generally. The
competent Minister or public authority may nonetheless subject other persons
performing public duties under their responsibility to the declaration duties
pursuant to Section 13 (1) 15. Estonia indicates that to date, the Prosecutor
General has not taken such decisions regarding the prosecutors generally. S/he
alone is required to file a declaration in accordance with section 13 (1) 1 in his/her
capacity of head of a governmental agency.
91. GRECO takes note of the information above. As indicated in the Evaluation Report,
at the time of the evaluation “The Prosecutor General, leading public prosecutors
and chief prosecutors file their declarations with the Parliament’s ACA Select
Committee, whereas prosecutors of other categories present their declarations to
the Prosecutor General’s Office. Declarations submitted by the Prosecutor General
are published in the on-line State Gazette, except for personal details and
information on the income, including taxable and dividend income. Declarations of
other categories of prosecutors are confidential.” The report expressed concerns
that the desirable uniformity in the application of the new Anti-Corruption Act (ACA)
could be undermined. It had been announced that to address these concerns,
Estonia’s Prosecutor General would issue an order subjecting all prosecutors in an
equal manner to the declaration mechanism of the ACA and that all declarations
would thus become public in future. Although these plans have not materialised to
date, Estonia has addressed the lack of consistency of declaration regimes by
requiring only the Prosecutor General to file a declaration under the new
arrangements of the revised ACA of 1 April 2013. The possible extension to other
prosecutors (on the basis of objective criteria, as the authorities explained in their
attest comments) is to be decided by the Prosecutor General. At the very moment,
the underlying concerns have thus been addressed in another manner. It is
however clear that when individual prosecutors are required again to submit a
declaration – to the Prosecutor general – the desirable uniformity could become an
issue again. Estonia needs to bear this in mind.
92. GRECO concludes that recommendation xvii has been dealt with in a satisfactory
manner.
Recommendation xviii.
93. GRECO recommended that additional measures be put in place to ensure the
effective supervision of economic interests’ declarations submitted by prosecutors
pursuant to the Anti-Corruption Act.
10
https://www.riigiteataja.ee/en/eli/521082014007/consolide (as of 22.09.2014)
19
94. The authorities refer to the information and new developments concerning
recommendation xvii.
95. GRECO recalls that the evaluation had pointed to the weak supervision carried out
by the Parliament’s ACA Select Committee and the Prosecutor general’s Office
concerning the respective categories of prosecutors concerned (see paragraph 91
above). GRECO considers that with the amendments of 1 April 2013 and the
suppression of a declaration duty for a variety of prosecutors, the main issue
remains the effective supervision of declarations to be filed by the Prosecutor
General him/herself with the Committee. This matter is now addressed under
recommendation vi and the objectives of the present recommendation have thus
been addressed in another way. As indicated in paragraph 91, it is however clear
that when individual prosecutors are required again to submit a declaration – to the
Prosecutor General – the effectiveness of the Prosecutor General’s supervision could
become an issue again. Estonia needs to bear this in mind.
96. GRECO concludes that recommendation xviii has been dealt with in a satisfactory
manner.
Recommendation xix.
97. GRECO recommended that dedicated and on-going training programmes, supported
by relevant materials, for prosecutors be developed focusing on professional ethics,
conflicts of interest (including recusal and withdrawal), rules concerning gifts,
hospitality and other advantages, declarations of interests and other corruption
awareness and prevention measures.
98. The authorities indicate that with regard to dedicated training programmes on
topics such as ethics, conflicts of interest and gifts, including practical examples of
situations, such sessions have been planned for 2015 by the Prosecutors’ Ethics
Council11. Attendance shall be mandatory for all Estonian prosecutors. 5 training
sessions are planned as part of the Annual Training Programme for Prosecutors.
These have been scheduled as follows, at both district and central level in order to
maximise the impact of training: a) 15.04.2015 in Jõhvi; b) 22.04.2015 in Pärnu; c)
24.04.2015 in Tallinn; d) 15.05.2015 in Tallinn; e) 22.05.2015 in Tartu.
99. Estonia also refers to the measures announced under recommendation xv
concerning the creation in April 2013 of a Prosecutors’ Ethics Council and the
adoption of a new Code of Ethics accompanied by explanatory notes. They also
refer to the planned establishment of an online self-training tool on ethics, conflicts
of interest and other integrity-related matters, also mentioned earlier in relation to
recommendations vii and xii.
100. GRECO is pleased to see that a series of concrete measures are planned to address
this recommendation and it encourages the authorities to pursue their efforts.
GRECO will need to reassess the situation when the process of implementation is
more advanced and concrete information becomes available on the actual content
of training activities, the attendees involved/concerned and so on.
101. GRECO concludes that recommendation xix has been partly implemented.
11
At the time of adoption of the present report, the Estonian authorities indicated that these events are to be
carried out mainly by the head of the prosecutors’ Ethics’ Council and partly by a judge (introducing the
principles of ethics concerning court proceedings that have been drawn up by Prosecutor’s Office, courts and
Estonian Bar Association). They would provide practical illustration with case-examples, also on the basis of the
content of the Code of Ethics and its explanatory guidelines (including feedback received so far) as well as the
guidelines on reporting mechanisms when one is being (unlawfully) influenced.
20
III. CONCLUSIONS
102. In view of the foregoing, GRECO concludes that Estonia has implemented
satisfactorily or dealt with in a satisfactory manner ten of the nineteen
recommendations contained in the Fourth Round Evaluation Report. The
nine remaining recommendations have been partly implemented.
103. More specifically, recommendations v, ix, x, xii to xvi have been implemented
satisfactorily, recommendations xvii and xviii have been dealt with in a satisfactory
manner and recommendations i, ii, iii, iv, vi, vii, viii, xi and xix have been partly
implemented.
104. With respect to members of parliament, despite a series of reforms and new
integrity standards being introduced, conclusive progress was achieved in respect
of one recommendation only. Some important developments are reported, such as
the adoption in December 2014 of a Code of conduct for MPs and the publication in
March 2015 of a guidance document containing practical examples of potentially
problematic situations involving conflicts of interest and benefits offered to
parliamentarians. Other measures are being introduced including rules on the way
MPs engage with lobbyists and other third parties. Estonia announces that there are
plans to amend the Anti-Corruption Act further, in order for instance to broaden its
applicability to MPs. Measures are also being taken to clarify the rules on gifts and
other benefits and to provide for guidance in this area. GRECO welcomes these
various initiatives. On the other side, it expects more determined action to improve
the supervision of the Code of conduct and of the system for the declaration of
assets and interests by the Anti-Corruption Select Committee of the Parliament,
and to put in place adequate awareness-raising measures for members of
Parliament.
105. As far as judges and prosecutors are concerned, Estonia is making improvements
through new measures to make judges and prosecutors more familiar with integrity
standards and for the objectivity of decisions on the promotion of prosecutors.
Likewise, in April 2013 a new Code of ethics and an Ethics Council were introduced
for prosecutors and appraisal systems are being introduced for judges and
prosecutors. GRECO also welcomes new steps as regards the adoption of objective
criteria for the advancement of judges; for the time being, this innovation is limited
to the appointments to appellate courts. Estonia has also taken steps to foster the
supervision of the judges’ declarations of assets and interests and changes in the
supervisory arrangements applicable to prosecutors have, for the time being, put
an end to the lack of consistency across this body of practitioners.
106. Estonia has thus initiated an ambitious reform process and GRECO notes that
further amendments are underway in respect of a number of the pending
recommendations. It encourages Estonia to pursue its efforts especially since for
the time being, the vast majority of recommendations concerning integrity rules for
members of Parliament have only been partly implemented. It invites the Head of
delegation of Estonia to submit additional information regarding the implementation
of recommendations i, ii, iii, iv, vi, vii, viii, xi, and xix by 30 September 2016.
107. Finally, GRECO invites the authorities of Estonia to authorise, as soon as possible,
the publication of the report, to translate the report into the national language and
to make this translation public.
21
F
O
U
Adoption: 7 December 2012 Public R
Publication: 8 January 2013 Greco Eval IV Rep (2012) 5E
T
H
FOURTH EVALUATION ROUND E
V
A
L
Corruption prevention in respect of members of
U
parliament, judges and prosecutors A
T
I
O
EVALUATION REPORT N
ESTONIA
R
O
U
Adopted by GRECO at its 58th Plenary Meeting
(Strasbourg, 3-7 December 2012) N
D
TABLE OF CONTENTS
EXECUTIVE SUMMARY .....................................................................................................................................4
I. INTRODUCTION AND METHODOLOGY .....................................................................................................5
II. CONTEXT ..................................................................................................................................................7
III. CORRUPTION PREVENTION IN RESPECT OF MEMBERS OF PARLIAMENT ..................................................9
INTRODUCTION TO THE PARLIAMENTARY SYSTEM ........................................................................................................... 9
Transparency of the legislative process ......................................................................................................... 9
REMUNERATION AND ECONOMIC BENEFITS ................................................................................................................. 11
ETHICAL PRINCIPLES AND RULES OF CONDUCT.............................................................................................................. 12
CONFLICTS OF INTEREST .......................................................................................................................................... 13
PROHIBITION OR RESTRICTION OF CERTAIN ACTIVITIES ................................................................................................... 15
Gifts ............................................................................................................................................................. 15
Incompatibilities, accessory activities and financial interests ..................................................................... 15
Contracts with State authorities .................................................................................................................. 16
Post-employment restrictions ...................................................................................................................... 16
Misuse of confidential information ............................................................................................................. 16
Misuse of public resources ........................................................................................................................... 17
DECLARATION OF ASSETS, INCOME, LIABILITIES AND INTERESTS ....................................................................................... 17
SUPERVISION ........................................................................................................................................................ 18
Declarations of economic interests.............................................................................................................. 18
Additional employment and other activities ............................................................................................... 20
ENFORCEMENT MEASURES AND IMMUNITY ................................................................................................................. 20
TRAINING AND AWARENESS ..................................................................................................................................... 21
IV. CORRUPTION PREVENTION IN RESPECT OF JUDGES ............................................................................... 22
OVERVIEW OF THE JUDICIAL SYSTEM.......................................................................................................................... 22
Categories of courts and jurisdiction levels ................................................................................................. 22
Independence of the judiciary and the administration of courts ................................................................. 23
Consultative and decision-making bodies ................................................................................................... 24
RECRUITMENT, CAREER AND CONDITIONS OF SERVICE ................................................................................................... 25
Recruitment requirements ........................................................................................................................... 25
Appointment procedure and career advancement ...................................................................................... 25
Evaluation of a judge’s performance ........................................................................................................... 27
Transfer of a judge....................................................................................................................................... 27
Termination of service and dismissal from office ........................................................................................ 28
Salaries and benefits.................................................................................................................................... 29
Lay judges .................................................................................................................................................... 29
CASE MANAGEMENT AND COURT PROCEDURE ............................................................................................................. 30
Assignment of cases .................................................................................................................................... 30
The principle of hearing cases without undue delay ................................................................................... 30
The principle of public hearing .................................................................................................................... 31
ETHICAL PRINCIPLES AND RULES OF CONDUCT.............................................................................................................. 31
CONFLICTS OF INTEREST .......................................................................................................................................... 32
PROHIBITION OR RESTRICTION OF CERTAIN ACTIVITIES ................................................................................................... 32
Incompatibilities and accessory activities .................................................................................................... 32
Recusal and routine withdrawal .................................................................................................................. 33
Gifts ............................................................................................................................................................. 33
Post-employment restrictions ...................................................................................................................... 33
Third party contacts, confidential information ............................................................................................ 34
DECLARATION OF ASSETS, INCOME, LIABILITIES AND INTERESTS ....................................................................................... 34
SUPERVISION ........................................................................................................................................................ 34
2
Ethical principles and conflicts of interests .................................................................................................. 34
Additional employment and activities ......................................................................................................... 35
Declarations of economic interests.............................................................................................................. 35
ENFORCEMENT MEASURES AND IMMUNITY ................................................................................................................. 36
TRAINING AND AWARENESS ..................................................................................................................................... 38
V. CORRUPTION PREVENTION IN RESPECT OF PROSECUTORS .................................................................... 40
OVERVIEW OF THE PROSECUTION SERVICE .................................................................................................................. 40
Consultative and decision-making bodies ................................................................................................... 41
RECRUITMENT, CAREER AND CONDITIONS OF SERVICE ................................................................................................... 41
Recruitment requirements ........................................................................................................................... 41
Appointment procedure and promotion to a higher rank ........................................................................... 42
Evaluation of a prosecutor’s performance .................................................................................................. 43
Transfer of a prosecutor .............................................................................................................................. 43
Termination of service and dismissal from office ........................................................................................ 43
Salaries and benefits.................................................................................................................................... 43
CASE MANAGEMENT AND PROCEDURE ....................................................................................................................... 44
ETHICAL PRINCIPLES AND RULES OF CONDUCT.............................................................................................................. 45
CONFLICTS OF INTEREST .......................................................................................................................................... 46
Incompatibilities and accessory activities .................................................................................................... 46
Recusal and routine withdrawal .................................................................................................................. 46
Gifts ............................................................................................................................................................. 46
Post-employment restrictions ...................................................................................................................... 47
Third party contacts, confidential information ............................................................................................ 47
DECLARATION OF ASSETS, INCOME, LIABILITIES AND INTERESTS ....................................................................................... 47
SUPERVISION ........................................................................................................................................................ 48
Additional employment and accessory activities ......................................................................................... 48
Declarations of economic interests.............................................................................................................. 48
ENFORCEMENT MEASURES AND IMMUNITY ................................................................................................................. 48
TRAINING AND AWARENESS ..................................................................................................................................... 50
VI. RECOMMENDATIONS AND FOLLOW-UP ................................................................................................. 51
3
EXECUTIVE SUMMARY
1. Estonia has traditionally been considered and remains one of the least corrupt
countries in post-communist Europe. Preceding to and subsequent to its accession to the
EU, the levels of perceived corruption have decreased significantly. However, specifically
in the field of corruption prevention amongst members of Parliament, judges and
prosecutors more progress could be achieved.
2. The size of the Estonian society, the relatively low number of the country’s
officials and the compact nature of the above professional groups, are seen by
themselves as a deterrent and an efficient self-regulatory framework for reducing
corruption. For this reason, corruption prevention in Estonia has not been pursued in a
systematic and coherent manner.
3. While the general legal framework for the prevention and the fight against
corruption applicable to the three professional groups appears to be satisfactory, and
would potentially become more focused following the entry into force in April 2013 of the
revised Anti-Corruption Act, the manner in which the currently effective law has been
applied in the different contexts, i.e. in Parliament, within the judiciary and the
prosecutorial service, has not been sufficiently clarified and has led to a number of
implementation gaps.
4. With respect to each of the three target groups, mostly common problems have
been identified which include: the lack of application of the conflicts of interest rules
(particularly, in respect of members of Parliament), the absence or insufficient definition
of ethical principles and rules of conduct (particularly, with regard to members of
Parliament); the lack of practical guidance as regards the acceptance of gifts associated
with official duties and of procedures for reporting and registering courtesy gifts; the
weak supervision of compliance with ethical principles and rules on conflicts of interests
and on disclosure of economic interests. This is compounded by the insufficient
awareness of ethical requirements and the absence of on-going counselling and tailor-
made training programmes.
4
I. INTRODUCTION AND METHODOLOGY
5. Estonia joined GRECO in 1999. Since its accession, the country has been subject
to evaluation in the framework of GRECO’s First (in April 2001), Second (in October
2003) and Third (in November 2007) Evaluation Rounds. The relevant Evaluation
Reports, as well as the subsequent Compliance Reports, are available on GRECO’s
homepage (www.coe.int/greco).
6. GRECO’s current Fourth Evaluation Round, launched on 1 January 2012, deals
with “Corruption Prevention in respect of Members of Parliament, Judges and
Prosecutors”. By choosing this topic, GRECO is breaking new ground and is underlining
the multidisciplinary nature of its remit. At the same time, this theme has clear links with
GRECO’s previous work, notably its First Evaluation Round, which placed strong emphasis
on the independence of the judiciary, the Second Evaluation Round, which examined, in
particular, the executive branch of public administration, and the Third Evaluation Round,
which focused on the incriminations of corruption (including in respect of
parliamentarians, judges and prosecutors) and corruption prevention in the context of
political financing.
7. Within the Fourth Evaluation Round, the same priority issues are addressed in
respect of all persons/functions under review, namely:
ethical principles, rules of conduct and conflicts of interest;
prohibition or restriction of certain activities;
declaration of assets, income, liabilities and interests;
enforcement of the applicable rules;
awareness.
8. As regards parliamentary assemblies, the evaluation focuses on members of
national Parliaments, including all chambers of Parliament and regardless of whether the
Members of Parliament are appointed or elected. Concerning the judiciary and other
actors in the pre-judicial and judicial process, the evaluation focuses on prosecutors and
on judges, both professional and lay judges, regardless of the type of court in which they
sit, who are subject to national laws and regulations.
9. In preparation of the present report, GRECO used the responses to the Evaluation
Questionnaire (Greco Eval IV (2012) 6E) by Estonia, as well as other data, including
information received from civil society. In addition, a GRECO evaluation team (hereafter
referred to as the “GET”), carried out an on-site visit to Estonia (Tallinn and Tartu) from
4 to 8 June 2012. The GET was composed of Ms Vita HABJAN, Chief Project Manager for
Corruption Prevention, Centre for Prevention and Integrity of Public Service, Commission
for the Prevention of Corruption (Slovenia), Mr Rainer HORNUNG, First Prosecutor,
Director of the German Judicial Academy (Germany), Mrs Diāna KURPNIECE, Head of the
Corruption Prevention Division, Corruption Prevention and Combating Bureau (Latvia)
and Mr Marc VAN DER HULST, Directeur d’Administration du Service Juridique de la
Chambre des Représentants, Parlement fédéral (Belgium). The GET was supported by Ms
Lioubov SAMOKHINA from GRECO’s Secretariat.
10. The GET interviewed representatives of Parliament (Select Committee on the
Application of Anti-Corruption Act, Legal Affairs Committee and Constitutional
Committee) and representatives of the following political parties (including
parliamentarians): Estonia’s Social Democratic Party, Central Party, Pro Patria and Res
Publica Union, Reform Party, Estonia’s Conservative People’s Party, and the Estonian
Green Party. Moreover, the GET held interviews with members of the judiciary (county,
circuit courts, administrative courts, the Supreme Court, the Judicial Training
Department, the Judges’ Examination Committee and the Disciplinary Chamber) and of
the Prosecutorial Service (Prosecutor General’s Office, district prosecutor’s offices, the
5
Prosecutors’ Competition and Evaluation Committee and the Prosecutors’ Disciplinary
Committee). The GET also met with representatives of the Ministry of Justice and of the
Security Police. Finally, the GET spoke with a member of the Board of the Estonian
Association of Judges and representatives of the Estonian Bar Association, Transparency
International, the media and an expert on government (lobbying) relations.
11. The main objective of the present report is to evaluate the effectiveness of
measures adopted by the authorities of the Estonia in order to prevent corruption in
respect of Members of Parliament, Judges and Prosecutors and to further their integrity
in appearance and in reality. The report contains a critical analysis of the situation in the
country, reflecting on the efforts made by the actors concerned and the results achieved,
as well as identifying possible shortcomings and making recommendations for further
improvement. In keeping with the practice of GRECO, the recommendations are
addressed to the authorities of Estonia, which are to determine the relevant
institutions/bodies responsible for taking the requisite action. Within 18 months following
the adoption of this report, Estonia shall report back on the action taken in response to
the recommendations contained therein.
6
II. CONTEXT1
12. For years, Estonia was considered as the least corrupt country in post-communist
Europe. Following its accession to the EU, the levels of perceived corruption decreased
significantly. In the course of the past eight years, the figures have remained relatively
stable.
13. As concerns the overall perception of corruption, according to the 2011 Special
Eurobarometer2, 72% of the Estonian respondents considered corruption to be a major
problem in their country (as compared to 82% in 2009). Among the main causes of
corruption, 47% named “too close links between politics and business”, 31% pointed to
“public money not spent in a transparent manner”, and 24% claimed that politicians were
“not doing enough to fight corruption”. According to the Transparency International
corruption perception index (CPI), Estonia’s position while remaining stably high, has
slightly declined dropping down three places to the 29 th position (score 6.4).3 Similarly,
the 2012 “Doing Business Report” 4 ranks Estonia as 24th, as opposed to 18th in 2011.
Domestic surveys have produced largely comparable results (e.g., pursuant to the survey
“Corruption in Estonia: study of three target groups in 2010”, 68% of Estonians
considered corruption to be a serious problem).
14. As concerns the groups specifically covered by this evaluation round, both
domestic and international surveys reserve the lowest level of trust for politicians and
political parties. The 2009 Estonia Human Development Report showed that 28% of the
population had trust in Parliament, and only 19% – in the political parties.5 According to
the 2011 Eurobarometer survey, state politicians were found to be the second most
corrupt category (50%, with average figure in the EU being 57%).6 Although little
evidence exists of corruption among national political leaders, concerns linger about
political parties, particularly as regards insufficient transparency and supervision of their
financing.
15. Information regarding corruption prevalence among the Estonian judges is rather
mixed. According to some sources, the judiciary is widely perceived as independent,
professional and efficient.7 This is supported by surveys, such as the 2009 International
Finance Corporation/World Bank Enterprise Survey, pursuant to which 66.5% of firms
operating in Estonia perceive the court system to be fair, impartial and uncorrupted. 8 Yet
other sources, such as the 2011 Special Eurobarometer, indicate that attitudes towards
judicial services have worsened in Estonia more than in all other EU member states
(40%, as opposed to 34% in 2009). This may be partly explained by the conviction of
five Estonian judges for corruption and gratuity offences between 2007 and 2012.
Although this figure does not appear to be high, it represents an important proportion of
the country’s judiciary. It is to be noted, that back in 2005 doubts were raised whether
judicial corruption had received proper attention from Parliament. 9
16. There is no empirical evidence of corruption as regards prosecutors in Estonia,
with the exception of one pending case concerning an assistant prosecutor.
1
Since information on corruption prevention in Estonia is rather scarce, some of the references included in this
report have been made to sources published well before the evaluation visit.
2
http://ec.europa.eu/public_opinion/archives/ebs/ebs_374_en.pdf.
3
http://cpi.transparency.org/cpi2011/.
4
http://www.doingbusiness.org/data/exploreeconomies/estonia/.
5
2009 Estonian Human Development Report, Tallinn, 2010, p. 113.
6
See footnote No. 2 above, p. 49.
7
Monitoring the EU Accession Process: Judicial Independence, Country reports, Open Society Institute, 2001, p.
157.
8
Estonia Country Profile 2009, http://enterprisesurveys.org.
9
Freedom House. Nations in Transit 2005. Estonia.
7
17. A number of other issues deserve to be mentioned as part of the contextual
framework. In the course of its visit, the GET was frequently reminded of the size of the
country, where “everyone knew everyone”. References were also made to the strongly
partisan nature of the political environment in Estonia, which was allegedly consensus-
based. A recent OECD study explains that the Estonian public administration, operating
within the context of a small state, has “a hybrid governance structure, combining strong
vertical silos and formal, legalistic arrangements with many personal and informal
networks”.10 A certain level of corporative culture which is dominant in the society and
which is caused amongst other reasons by the similarity of the social background of
people occupying the leading positions has allegedly contributed to the on-going climate
of tolerance of potential corrupt behaviour.11
18. As concerns civil society’s involvement in corruption prevention, many individual
non-governmental organisations reportedly lack organisational and/or the financial
capacity to effectively supervise government and parliament and to push for anti-
corruption reforms, and only the largest NGOs have made attempts to work, for
example, with political parties. Also, being subject to short-term financing from state or
local governments, some NGOs sensed a need for self-censorship.12
19. As regards the role of the media, it is widely acknowledged that their main
strength lies not in uncovering corruption cases, as the share of investigative journalism
in Estonia is relatively minor, but in notifying and shaping the anti-corruption perceptions
of the public.13
20. Lastly, on 6 June 2012, a revised Anti-Corruption Act was adopted by Parliament.
It will enter into force on 1 April 2013, except for the provisions related to the setting up
of an electronic register of officials’ declarations of interests, which will enter into force
on 1 January 2014.
10
Estonia: Towards a Single Government Approach, OECD Publishing, 2011, pages 5-6.
11
Corruption crimes handled in Estonian courts in years 2002-2008,
http://transparency.ee/cm/files/corruption_crimes_handled_in_estonian_courts_2002-2008.pdf, p. 9.
12
Freedom House. Nations in Transit 2005. Estonia and National Integrity System Assessment. Estonia.
Executive Summary. Transparency International, www.transparency.ee.
13
National Integrity System Assessment. Estonia. Executive Summary. Transparency International,
www.transparency.ee.
8
III. CORRUPTION PREVENTION IN RESPECT OF MEMBERS OF PARLIAMENT
Introduction to the parliamentary system
21. Estonia is a democratic republic with a multi-party system whose Constitution was
adopted by referendum on 28 June 1992. The principle of separation and balance of
powers is enshrined in article 4 thereof. The legislative power is vested in a unicameral
Parliament (“Riigikogu”), which passes laws, in principle, by a majority of votes. 14 The
right to take legislative initiatives belongs to a member, a faction and a committee of
Parliament, the Government and the President of the Republic, the latter however, only
as regards amendments to the Constitution. The Parliament is entitled, on the basis of a
resolution adopted by a majority of its membership, to address a recommendation to the
Government to initiate a desired bill.15 The Parliament’s other key functions include, inter
alia, the election of the President of the Republic and authorisation for a candidate Prime
Minister to form a Government.16
22. Parliament consists of one hundred and one members, who are elected every four
years via free, general, uniform and direct elections under a proportional representation
system (a modified d’Hondt method) in twelve multi-mandate electoral districts.
Mandates are divided between political parties which receive at least five per cent of the
national vote and possibly, individual candidates for whom the number of votes cast
exceeds or equals the simple quota calculated for the relevant electoral district. 17 The
procedure for the election is provided by the Parliament Election Act of 12 June 2002.
The Parliament’s work is managed by a President and two Vice-Presidents, on the basis
of the Parliament’s Rules of Procedure and Internal Rules Act (RPIRA) of 11 February
2003.
23. According to article 62 of the Constitution, deputies are not bound by their
mandate or subject to liability for the votes cast or statements made in Parliament or its
bodies. Furthermore, the Status of Member of Parliament Act (SMPA) of 14 June 2007
stipulates that a deputy is a representative of the people and elected pursuant to the
Constitution and the Parliament Election Act. 18 S/he is independent and performs his/her
duties in accordance with the Constitution, acts, public interests and his/her conscience. 19
24. A deputy’s mandate expires following his/her appointment to another state office,
entry into force of a court conviction, resignation according to a procedure prescribed by
law, a decision by the Supreme Court recognising him/her incapable of performing duties
for an extended period of time, and upon his/her death. 20 The authority of a member of
Parliament is suspended in instances where s/he is appointed to Government. The
mandate is restored following the release from the aforementioned duties. 21
Transparency of the legislative process
25. Within three working days of the submission of a bill for legislative proceedings,
the Parliament’s Board, consisting of the Parliament’s President and two Vice-Presidents,
decides on its acceptance and, if affirmative, assigns it to one of the Standing
Committees.22 Information on the legislative process pertaining to a given bill is available
to the general public from the moment a decision to commence a legislative process is
made. The contents of a bill, the proposed amendments and all other pertinent materials
14
Article 73 of the Constitution.
15
Article 103 of the Constitution.
16
Article 65, sections 3 and 5 of the Constitution.
17
Section 62 (2) and (3) of the Parliament Election Act.
18
Section 1 SMPA.
19
Section 17 (1) SMPA.
20
Section 8 (2) SMPA.
21
Section 5 (1-2) and 7 SMPA.
22
Section 93 (1-3) RPIRA.
9
are placed on the Parliament’s website,23 so that interest groups and individuals may
send comments to the committee concerned. On 9 February 2012, the Board has
approved the guidelines on good practices in the legislative process which are also
available on the Parliament’s website.24
26. Public consultations are conducted via an electronic data base, 25 which is
maintained by the Parliament and serves as a repository for bills, accompanying
documents, including comments submitted by ministries and other interested parties. To
facilitate consultation, a booklet on public consultation good practices was approved by
the Government and is made available on its website. 26
Additionally, different parliamentary committees establish registries (online lists) of
partners, in order to have a wider inclusion of interested third parties in a specific
committee’s work. Having completed a questionnaire, 27 anyone may include him/herself
in a list placed on the Parliament’s website. Furthermore, pursuant to section 28 of the
Public Information Act of 15 November 2000, draft laws developed by ministries and
draft governmental regulations, together with explanatory memoranda, when these are
sent for approval to government agencies or presentation to Government, are subject to
public disclosure. This requirement also extends to draft concepts, development plans,
programmes and other projects of general importance before they are submitted to
competent bodies for approval or once they are approved or adopted. Documents may
not be disclosed in the cases provided for by law. All pertinent documentation, as well as
the general public’s feedback together with indication of its acceptance by relevant
bodies, is also available on the Government’s website. 28 Public agencies are under the
obligation to give reasoning when accepting or declining the amendments made by
interested parties.
27. In accordance with article 72 of the Constitution, parliamentary sessions are open
to the public, unless a two-thirds majority decides otherwise. This principle is reiterated
by the RPIRA.29 Voting is also public, except for the elections of the President of the
Republic, the Parliament’s President and Vice-Presidents and the appointment of the
Supreme Court justices, Auditor General, Chancellor of Justice and his/her deputies,
Chairman and members of Board of the Bank of Estonia.30 As a main rule, voting is
carried out via an electronic system. Results are disclosed on the Parliament’s website,
indicating the name of a deputy and his/her vote (for/against/missing/did not
vote/abstained). In the case of voting by ballot,31 votes are counted publicly. Once
confirmed by the chair’s stroke of the gavel, voting results may not be contested.
28. As concerns parliamentary committees, their sittings may be open to the public if
more than half of a committee’s members vote in favour thereof. 32 Members of
Government may participate in a committee’s sitting with the right to speak;
representatives of state agencies and other persons may participate when invited by the
committee’s chair. The taking of minutes is obligatory. They are to reflect the exact time
and venue of the sitting, the name and positions of attendees, the sitting’s agenda, the
resolutions adopted and voting results. Upon request by a speaker, the minutes may
reflect his/her opinion expressed during the meeting. The minutes are published on the
Parliament’s website alongside information on the submissions and results of voting on
23
http://www.Riigikogu.ee.
24
http://www.riigikogu.ee/?op=ems&page=dokumentide_detailid&pid=6c4446b4-6f77-4621-aab1-
a4c66c738798&.
25
http://eelnoud.valitsus.ee.
26
http://www.valitsus.ee/riigikantselei/kaasamine-ja-mojude-hindamine/kaasamise-hea-tava.
27
See e.g. list of partners of the Constitutional Committee: http://www.riigikogu.ee/index.php?id=174511.
28
http://eelnoud.valitsus.ee/main#hDyUkpZu.
29
Section 59 (1) RPIRA.
30
Section 79 RPIRA.
31
Ballot papers are used in elections of the President of the Republic and of President and Vice-Presidents of
Parliament.
32
Section 36 (3) RPIRA.
10
motions. Additionally, according to section 103 RPIRA, in preparation for the second
reading of a draft legislation, a committee responsible for the draft shall prepare an
explanatory memorandum which sets out information related to the proceeding, including
reasons for the acceptance or refusal to accept motions to amend, the initiators or
presenters of the draft legislation, the opinion of experts and other persons participating
in the proceeding.
29. Legal provisions are in place to guarantee access to information and public
consultation. Draft bills and other pertinent documents are systematically placed on web
sites by Parliament and relevant government agencies. A set of guidelines on good
practices in the legislative process and a booklet on public consultation good practices
are available, and the fact that public consultations are conducted in practice is
confirmed by the government statistics, according to which around 5% of the proposed
amendments are integrated into the bills.33 In so far as the transparency of
parliamentary sessions is concerned, these are generally open to the public and web cast
live. By contrast, the committees’ meetings are held in public only in case more than a
half of its membership votes in favour thereof. Upon invitation by the committee’s chair
or a respective committee’s voting, any experts or guests may be invited to the
committee’s sittings. Some interlocutors stated that it was not unusual for the lists of
invited persons to include those with vested interests and/or links to individual
parliamentarians. The absence of complete information (through registration or
publication) on all those who may have influenced a concrete proceeding or a deputy
participating therein, as well as the rarity of cases of actual withdrawal of deputies from
the decision making were mentioned among factors contributing to the lack of
transparency of the legislative process in Parliament. While acknowledging that contacts
with third parties are important for the effective exercise of a deputy’s mandate since
they enable the representation of a broad range of interests emanating from the
parliamentarian’s electorate, the GET, nevertheless, encourages the authorities to seek
ways to enhance transparency of parliamentary committee meetings, particularly when
these are open for participation by third parties.
30. The GET also notes that lobbying remains an unregulated issue in Estonia. 34
According to various sources, vested interests allegedly exert significant influence on
members of Parliament during the law-making process. Areas to which such influence
reportedly applies include energy, health and pharmaceuticals sectors, gambling,
smoking, alcohol and waste management. The GET recalls, however, that the focus of
this evaluation is the standards applicable to members of Parliament and not those who
lobby them. In view of the foregoing and in order to ensure greater transparency of the
legislative process, GRECO recommends the introduction of rules on how
members of Parliament engage with lobbyists and other third parties who seek
to influence the legislative process.
Remuneration and economic benefits
31. Deputies are expected to work full time and their principal place of employment is
the Parliament.35 Article 75 of the Constitution stipulates that their remuneration and
restrictions on the receipt of other employment income is to be provided by law, which
may be amended for the next composition of Parliament. Since 1 January 2012, deputies’
salaries are connected with the salary rate established by the Salaries of Higher State
Servants Act. The highest monthly salary rate (5 200 Euros) serves as a basis for
calculating salaries of state servants included in the list and is subject to annual
indexation.36 The salary of a member of Parliament is calculated as a salary base
33
Freedom House. Nations in Transit 2005. Estonia.
34
In late 2011, a working group was set up by the Ministry of Justice to analyse various options available. For
the moment, the exact outcome of its deliberations remains rather unclear.
35
Section 22 (1) SMPA.
36
Previously, salaries of members of Parliament were regulated by section 29 SMPA.
11
multiplied by a coefficient: for a member of Parliament the coefficient is 0,65; for the
Parliament’s President – 1,0; for a Vice-President – 0,85; for a committee’s chair and a
chair of a faction – 0,85; and for a committee’s deputy chair and a deputy chair of a
faction – 0,75. In comparison, the average gross monthly salary in Estonia (as in
September 2011) is 826 Euros, and the average gross annual salary is 9 912 Euros.
32. The receipt of other benefits is regulated by the SMPA. In particular, deputies are
entitled to compensation of their work- and housing-related expenses at actual cost.
Also, a one-off payment, consisting of not more than six monthly salaries, depending on
a deputy’s length of service, is provided following the expiration of the deputy’s
mandate.37 There is no special taxation regime applicable to parliamentarians.
33. Work-related expenses are compensated on the basis of receipts in the amount of
up to 30% of a deputy’s salary, pursuant to the procedure established by the
Parliament’s Board. This procedure provides for compensation of office and
communication expenses, and of deputies’ individual lessons. 38 The cost of
accommodation and travel while on official journeys is also subject to reimbursement.
34. Compensation of housing expenses in the amount of 20% of a deputy’s salary is
provided upon his/her request, in cases where according to the data entered in the
Population register, the deputy resides outside Tallinn or a local government bordering
Tallinn.39 The costs are borne by the Parliament’s Chancellery, based upon an agreement
with the deputy concerned.
35. Information on salaries is available on the Parliament’s website and generally
mirrors the aforementioned provisions of the SMPA (the link to the Act is also provided).
Although individual salaries are not publicly disclosed, tables containing salaries from
previous years are on display, and access to information on both individual salaries and
work-related compensations may be provided upon request. The Accounting Service of
the Parliament’s Chancellery exercises control over compliance of submitted financial
documents with the pertinent legal requirements.
Ethical principles and rules of conduct
36. Pursuant to article 61 of the Constitution, a member of Parliament is to take an
oath pledging loyalty to the Republic of Estonia and to its constitutional order. The texts
of oaths, duly signed by parliamentarians, are stored by the Supreme Court.
37. There is an on-going debate in Estonia on the desirability of developing a code of
conduct for members of Parliament. The opinions are divided. According to some, there is
no need for such a document, unless the initiative comes from the Parliament itself.
Others refer to the scandals surrounding the financing of political parties and argue in
favour thereof. In January 2012, the Parliament’s Select Committee on the Application of
the Anti-Corruption Act (the ACA Select Committee) supported a proposal by
Transparency International Estonia to draw up a deputies’ code of conduct and suggested
the initiation of a drafting process to the Parliament’s Board. Also, an informal working
group has been established, between factions, to discuss the need for the code and its
possible content. It appears, however, that the Parliament’s leadership is reluctant to
deal with this matter and continues to insist that the Anti-Corruption Act contains all the
necessary measures to prevent corruption amongst parliamentarians.
38. The GET regrets that the idea of a code of conduct has not yet been given due
attention to by the Parliament’s leadership. Such a stand appears to be particularly
37
Section 32 SMPA.
38
Section 30 SMPA.
39
Section 31 SMPA.
12
disconcerting given the relatively low level of public trust in politicians and political
parties and bearing in mind the financial scandals tainting the parties’ image in Estonia.
The GET is convinced, that by adopting a code of conduct, deputies would demonstrate a
requisite political will to be guided by clearly stated ethical standards. It is essential
therefore that the support for the drafting of the code comes from within the Parliament.
The code could address issues which have received little attention so far, such as
conflicts of interest, revolving doors, gifts, hospitality and other advantages, outside
activities. The adoption of the code, in conjunction with more focused induction courses
and the provision of on-going counselling and advice would not only raise deputies’
awareness on corruption prevention but also help restore the authority of Parliament and
of political parties in Estonia. In view of the foregoing, GRECO recommends that (i) a
Code of Conduct for members of Parliament be elaborated; and (ii) in order for
the provisions of the Code to be effectively applied in practice, an efficient
mechanism of supervision and sanction, which takes into account the specific
nature of the parliamentary mandate, be established. While such a Code is to be
drafted by parliamentarians, the civil society’s input is to be welcome.
Conflicts of interest
39. Legal framework for the prevention and resolution of conflicts of interest of
parliamentarians is currently provided by: the Constitution, which sets forth some
general principles, such as the incompatibility of posts; the SMPA, containing, inter alia,
rules on accessory activities and duties incompatible with a deputy’s mandate; and, to a
limited extent, by the Anti-Corruption Act (ACA) of 19 January 1995, which is applicable
to officials, including, in principle, members of Parliament,40 and which regulates conflicts
of interest, declarations of economic interests, the receipt of gifts and the reporting of
corruption.
40. As concerns the SMPA, it states that, during his/her term of office, a member of
Parliament may not occupy a position or perform functions which are in conflict with the
principle of separation of powers or may in another manner cause conflicts of interests
with his/her duties.41
41. As regards the ACA, its key provision dealing with conflicts of interests as
contained in section 25 (see paragraph 123 below) is not applicable to members of
Parliament since it does not apply to decisions of general application, i.e. parliamentary
acts. That said, a number of other measures foreseen by the ACA are applicable to
deputies. Firstly, they are obliged to declare their economic interests (see further below).
Secondly, they are required to observe procedural restrictions. A procedural restriction is
defined as a prohibition to perform acts enabling an official to receive income derived
from corrupt practices, except for activities generating income from shareholding,
royalties, revenue from patents, interest on deposits or on immovable property subject
to commercial lease or use by other persons, fees for printed or electronic publications,
other income not presuming the recipient’s employment to promote the economic benefit
of another person.42
42. Thirdly, parliamentarians may not engage in self-dealing or conclude transactions
of similar nature or involving conflicts. All transactions concluded in violation of this rules
are void (see also further below).43
43. Fourthly, parliamentarians are prohibited from committing acts of corruption,
entering into relationships involving risks of corruption with natural and legal persons and
receiving income derived from corrupt practices. The act of corruption is defined as the
40
Section 4(2.1) ACA.
41
Section 22(2) SMPA.
42
Section 21 ACA.
43
Section 24 ACA.
13
use of an official position for self-serving purposes by an official who makes undue or
unlawful decisions or performs such acts or who fails in making lawful decisions or
performing lawful acts. A relationship involving a risk of corruption means a relationship
between an official and a third party which arises or may arise in case the official violates
restrictions applied to accessory activities or the procedural restrictions described above.
An official is required to notify the agency’s head, the Security Police, police or the
Prosecutor’s Office of a corruption act known to him/her. Failure thereof may trigger the
official’s dismissal.44
44. Violations of the aforementioned rules are punishable by a fine of up to 300
units45 (1 200 Euros), confiscation of unlawful benefits and imprisonment together with
deprivation of the right of employment in the particular office.
45. The GET notes that the current regulations on conflicts of interest are not
applicable to members of Parliament not only in the field of law-making, as laws are
considered to be acts of general application, but also in case of other types of decisions,
in the making of which deputies may be involved. The authorities explain that, although
there have been some cases where deputies had recused themselves from discussing
certain matters in parliamentary committees, in principle, the notification of conflicts of
interest is not possible due to the fact that a member of Parliament “is subject to no
person or body”. In the opinion of the GET, this is not a correct interpretation of the
autonomy of Parliament or its members, particularly as deputies participate in the
making of decisions, which are not acts of general application (e.g. recruitment of
support staff, public procurement). It is concluded that the lack of application of the
conflicts of interest provisions of the ACA with regard to members of Parliament is a
serious deficiency which needs to be remedied.
46. The GET further notes that, on 6 June 2012, a revised Anti-Corruption Act was
adopted by Parliament46, which eliminates the definition of conflicts of interest and
provides instead for a list of prohibitions, including bans on: 1) demanding, mediating
and receiving income derived from corrupt practices; 2) corrupt use of the official
position; 3) corrupt use of public resources; 4) corrupt use of influence; and 5) corrupt
use of insider information. Officials, including parliamentarians, however, remain subject
to procedural restrictions, restrictions on accessory activities and to disclosures of
interests. As concerns procedural restrictions, the revised ACA stipulates that an official,
including a member of Parliament, will be prohibited from performing acts or making
decisions if: 1) the decision is made or the act is performed with respect to the official or
a person connected to him/her; 2) the official is aware of an economic or other interest
accrued to him/her or a person connected to him/her and which may have an impact on
the act or the decision; 3) the official is aware of a risk of corruption. 47 In such instances,
the official is prohibited from performing the act, making the decision, or assigning it to
his/her subordinates but has to promptly inform his/her superior or a body that
appointed him/her thereof. Knowing violation of a procedural restriction will be
punishable by a fine of up to 200 units (800 Euros). The same act, if resulting in a
damage of more than 32,000 Euros, will be subject to a pecuniary sanction or
imprisonment of up to three years, pursuant to the revised Penal Code, which will enter
into force on the same day as the revised ACA.48 The GET is concerned, first of all, that
the revised provisions will continue to have a limited application in respect of members of
Parliament. Also, it would appear that the new definition of a procedural restriction is so
44
Sections 5-6 ACA.
45
A fine unit is the base amount of a fine and is equal to four Euros – see section 47(1) of the Penal Code.
46
As was previously mentioned, the revised ACA will enter into force on 1 April 2013, except for the provisions
related to the setting up of an electronic register of officials’ interests, which will enter into force on 1 January
2014.
47
Section 11, paragraph 1 of the revised ACA. The definition of “connected persons” is contained in section 7
thereof.
48
Revised section 300.1, paragraph 2 of the Penal Code.
14
broad that it may be rarely applicable in practice. Furthermore, the new ACA does not
explicitly stipulate whether a person or a legal entity with whom an official has a private
business relationship should be regarded as a “connected person” for the purposes of the
ACA. The GET is firmly persuaded that the procedural restrictions with regard to
pecuniary interests of any kind need to be used as one of the principle instruments for
preventing conflicts of interest and ensuring accountability of members of Parliament.
47. In view of the analysis presented in paragraphs 45-46 above, GRECO
recommends that (i) the existing conflicts of interest regulations be made
applicable to members of Parliament and subject to effective supervision; and
(ii) detailed guidelines be developed within Parliament containing practical
examples of conflicts of interest which are or may be encountered by members
of Parliament, including those arising specifically from pecuniary interests.
Prohibition or restriction of certain activities
Gifts
48. According to section 26 (2) ACA, an official, including a member of Parliament,
may not solicit or accept gifts, or consent to benefits which are made or granted to
him/her, or his/her close relatives, if this may influence, directly or indirectly, the
impartial performance of his/her duties. This rule also applies to the official’s close
relatives, including relatives by marriage. Gifts received in violation of the above
provision accrue to the official’s employer, unless otherwise provided by an international
custom or diplomatic etiquette.
49. In the course of the interviews, different opinions were expressed by
parliamentarians as to what kinds of benefits were acceptable and under which
circumstances. This may be due to the deficiencies found both in the current and in the
revised versions of the ACA. Thus, it would appear that both texts allow for a discretional
interpretation of situations where gifts may or may not be accepted by officials, including
members of Parliament. In the current ACA, reference is made to “gifts that may
influence, directly or indirectly the performance of the official’s duties”, and the revised
ACA refers to “benefits associated with official duties”. Some interlocutors concurred that
the current law was ambivalent, and that its revised version was not improving the
situation either. Additionally, they pointed that both versions fail to provide procedural
standards on the handling of acceptable courtesy gifts. In so far as Parliament is
concerned, there is no practice of reporting or registering gifts. In light of this situation,
including the aforementioned legislative imperfections, the elaboration of internal rules
and the provision of guidance, notably in order to assist in distinguishing between gifts
associated or not associated with official duties, and in circumscribing acceptable
courtesy gifts, appear to be important. Also, for these rules to become fully operational,
it is advisable that a supervisory structure be set up to ensure compliance with relevant
regulations. In view of the foregoing and in order to clarify and facilitate the
implementation of relevant provisions of the Anti-Corruption Act, GRECO recommends
that internal rules and guidance be provided within Parliament on the
acceptance of gifts, hospitality and other advantages and compliance by
parliamentarians with the aforementioned rules be properly monitored.
Incompatibilities, accessory activities and financial interests
50. Article 63 of the Constitution sets forth the principle of incompatibility of a
deputy’s mandate with the holding of any other state office, while the SMPA regulates
accessory activities and enumerates which duties are incompatible with the deputy’s
mandate. Thus, as previously mentioned, during his/her term of office, a member of
Parliament may not occupy a position or perform functions which are in conflict with the
principle of separation of powers or may in another manner cause conflicts of interests
15
with his/her duties.49 In particular, there is a prohibition for deputies to exercise the
duties of: (i) a public servant within state or local administration, including that of city or
rural municipality mayor; (ii) a city council or a rural municipality council; (iii) a deputy
of European Parliament or a servant of other states, institutions and bodies of the
European Union or international organisations; (iv) a member of the supervisory board of
the Bank of Estonia or management boards of legal persons in public law; (v) an
advocate, notary, bailiff or sworn translator; and (vi) a head or a member of the
management board of a company with state participation or a state-subsidised
foundation.50 In case of incompatibility, the employment or service relationship is
automatically terminated. Within one month from the taking of an oath, a deputy is
obligated to submit to the Parliament’s Board a declaration concerning his/her places of
employment and activities,51 which are not publicly disclosed.
51. There are no specific restrictions on the holding of financial interests or carrying
out of business activities by members of Parliament. The authorities stress, nevertheless,
that information on the sources of income is publicly available, only the exact amount of
the income remains not disclosed.
Contracts with State authorities
52. There are no restrictions on members of Parliament, in his/her private capacity, to
enter, either directly or through a business interest, into contracts with state authorities.
Post-employment restrictions
53. There are no post-employment restrictions applicable to members of Parliament.
Since the majority of deputies in Estonia are career politicians, it would appear that only
few of them move to the private sector once their mandate expires. The GET accepts that
a too restrictive post-employment rule in a country the size of Estonia, with a small
labour market, could result in a virtually forced unemployment for many deputies. At the
same time, a proportionate approach is needed in order to ensure that there is zero
tolerance for cases of blatant conflicts of interest. The GET also notes that, pursuant to
the currently effective Public Service Act, which is not applicable to members of
Parliament, a three year “cooling-off” period is provided for state officials wishing to
move to the private law entities, over which they have exercised supervision in the
course of the last three years. This period will be reduced to one year by amendments to
the Act, which will come into force on the same day as the revised ACA (i.e. on 1 April
2013). In view of the foregoing, GRECO recommends that (i) a study be carried out
in order to identify post-employment restrictions for members of Parliament
which might be required to avert conflicts of interests; and ii) post-employment
restrictions be introduced, if necessary.
Misuse of confidential information
54. In order to perform their duties, parliamentarians may be granted access to state
secrets and to classified foreign information. Such access may be denied by a justified
decision of the Prime Minister or a relevant minister if the state secret concerns a specific
security issue, or its publication endangers the implementation of selected provisions of
the Surveillance Act. To obtain access to classified foreign information, a member of
Parliament may need to undergo a security clearance, which is performed by the
Parliament’s Security Authorities Surveillance Committee. Subsequently, a certificate is
issued to the deputy concerned in conformity with the procedure prescribed by the State
Secrets and Classified Foreign Information Act of 25 January 2007. 52 Violation of
49
Section 22(2) SMPA.
50
Sections 22-28 SMPA.
51
Section 21 (2) SMPA.
52
Section 19 SMPA.
16
confidentiality rules entails criminal liability under sections 241 and 242 of the Penal
Code. The disclosure of state secrets and of classified information of foreign states is
punishable by a fine, or imprisonment of up to five years. The publication of the same
information via negligence is penalised by a fine or an imprisonment of up to one year.
Misuse of public resources
55. Currently, there are no rules as regards the misuse of public resources specifically
by members of Parliament. Notwithstanding, the authorities indicate that the deputies
are deemed to be officials in the meaning of section 288 (1) of the Penal Code of 6 June
2001.53 and that general offences of embezzlement, accepting bribe or gratuity and
violations of procedural restrictions are applicable to them. 54 Furthermore, the revised
ACA will introduce a ban on the corrupt use of public resources, which is understood as
the use of material and other resources intended for the performance of public duties by
an official in violation of his/her official duties in his/her personal interest or in the
interest of third persons, if from the point of view of public interest, this results in an
unequal or unjustified advantage for him/herself or for the third person. 55
Declaration of assets, income, liabilities and interests
56. Section 21 (1) SMPA imposes an obligation on members of Parliament to declare
their economic interests, pursuant to the procedure prescribed by the ACA. 56 The
declaration’s purpose is to get an overview of the economic interests of an official,
including parliamentarians, which may promote or cause conflicts of public and private
interests, the commitment of an act of corruption or the creation of a relationship
involving corruption risks.57 A declaration of economic interests is defined as a document
in which an official declares his/her property, proprietary obligations and other
circumstances allowing to determine his/her economic interests and financial situation. 58
57. The declaration covers a deputy’s individual assets, as well as joint assets of
spouses and includes in particular, information on: immovable property (including
structures and parts thereof until their entry in the land register); vehicles entered in the
state register; shares and other securities; debts and liabilities, in case the amount of
debt exceeds a six months’ salary or 3 500 Euros a year; other income, taxable income
and dividend income; and bank accounts. In the case of signatures of marital property
contracts, within one month from its entry into force (or of amendments thereof),
members of Parliament are obliged to submit a copy of the contract entered in the
marital property register to a depositary of asset declarations.59 Declarations are
submitted (i) within one month from taking office; and (ii) annually, within one month
from the expiry of term for submitting income tax returns. A new declaration is to be
filed within a month in case the composition of the property or structure thereof is
changed by at least 30% or by over 6 500 Euros.60
58. The ACA Select Committee acts as a depository of the deputies’ declarations
(more information on the Committee is provided below). According to section 12 ACA,
the depositary organises their timely collection, verification, storage and, if need be,
publication. The depositary may verify the accuracy of a declaration’s content and is
mandated to do so if an official is suspected of corruption. In the latter case, the
53
Namely a person who holds office in a state or local government agency or body, or in a legal person in
public law, and to whom administrative, supervisory or managerial functions, or functions relating to the
organisation of movement of assets, or functions of a representative of state authority have been assigned.
54
Sections 201, 293, 294 and 300.1 of the Penal Code.
55
Section 5(2) and 3(1) of the revised ACA.
56
Section 21 (1) SMPA.
57
Section 7 ACA.
58
Section 8 ACA.
59
Sections 9 and 10 ACA.
60
Section 13 ACA.
17
depositary may consult the official’s income tax return, data deposited in credit
institutions, registers and databases maintained by the state and local authorities. If
income derived from corrupt practices or a relationship involving corruption risks is
proven, materials are forwarded to an investigating authority. At the end of the
verification process, an audit report is prepared, which is communicated to the official,
including member of Parliament, concerned.
59. Declarations are published in the official online State Gazette of the Republic of
Estonia (“Riigi Teataja”), except for personal information of deputies and their close
relatives, the deputies’ other income, taxable income and dividend income and the
contents of marital property contracts.
60. Failure to submit a declaration by the due date constitutes a violation of duties of
employment or a breach of duties, and an act discrediting the agency. 61 It is subject to
disciplinary liability provided for by law (which has not been established in respect of
members of Parliament) or to misdemeanour liability provided for by the ACA. Late
submissions or submission of incomplete or false declaration, subject to disclosure, are
sanctioned by a fine of up to 300 fine units (1 200 Euros).62 In the case of failure to
submit a declaration by the due date, within one month after the offence has become
known, a notice is published by the depositary in the online State Gazette. 63
61. The GET notes that the revised ACA will bring a number of improvements into the
system of disclosure of interests. Thus, the content of declarations will be better defined,
and an electronic register will become operational as of 1 January 2014, which will
replace the current practice of submitting declarations on paper. Also, the law will
address the practice of using property (e.g. real estate, vehicles) belonging to third
parties, an occurrence which appears to be prevalent. Pursuant to the new Act, if used
for more than two months, such property will become subject to disclosure. At the same
time, the GET is concerned that access to declarations will be restricted to a period of
mere three years whereas the depositing period will have the duration of seven years. 64
Supervision
62. As was already indicated above, compliance by parliamentarians with conflicts of
interest regulations is currently not being subject to any supervision. The ACA Select
Committee acts as a depositary of declarations of economic interests, whereas the
Parliament’s Board collects declarations on the deputies’ accessory employment and
other activities. The ACA Select Committee, whose main goal is to perform tasks arising
from the Anti-Corruption Act and to contribute to the uniform application of anti-
corruption measures, was set up in 1995 as a temporary structure and was given its
present status in 1999. Following the most recent elections, it consists of eight deputies
(two per each political party represented in Parliament) and is supported by a
Secretariat. The Committee is competent to pass resolutions if at least one third of its
members are present, by a majority of votes.
Declarations of economic interests
63. As stated above, the verification of information included in the declarations of
economic interests, their storage and publication are entrusted to the ACA Select
Committee. In the event the Committee detects corruption and crimes or
misdemeanours, it forwards relevant materials to an investigative body or a body
conducting extra-judicial proceedings. Discovery of inaccurate or misleading information
may be a ground for further investigation concerning violations of anti-bribery or conflicts
61
Section 18 (2) ACA.
62
See sections 26.1(2) and 26.2 ACA.
63
Section 18(3) ACA.
64
See sections 16(2) and 16(5) of the revised ACA.
18
of interest rules or other standards of conduct. Pursuant to section 16 (7) ACA, all
depositaries of declarations are required to report on the performance of their duties to
the Committee, at its request. Failure to collect, deposit or verify declarations or the
unsatisfactory performance of these duties is punishable by a fine of up to 300 fine units
(1 200 Euros).65 Moreover, citizens possessing information on the failure by an official,
including a parliamentarian, to declare his/her assets in an honest and accurate manner
may request that their suspicions be verified by the official’s direct depositary or by the
ACA Select Committee.66 In case this information proves even partially correct, the
declaration together with the proof is published in the media.
64. The current system of supervision of economic interests’ declarations does not
appear to be satisfactory, and the flaws identified by the GET are applicable to all the
three groups under review. What has earned a lot of criticism is that under the current
ACA, declarations are merely collected but not thoroughly scrutinised. As regards
parliamentarians, less than ten declarations are being examined per year. There are no
rules on what has to be scrutinised, and the scrutiny itself is limited to checks of whether
the form has been correctly filled out and to a formal cross-examination with a couple of
public databases.67 This apparent lack of control only partially stems from the
Committee’s limited resources (two non-specialised administrative staff members 68);
rather it is explained by the conviction that the publication of a declaration is the primary
purpose.69 Given the circumstances, there are no documented cases of members of
parliament being fined for false or incomplete declarations.
65. It is worth recalling that the lack of efficiency of the ACA Select Committee was
already addressed by GRECO in the context of the Second Evaluation Round Report (see
recommendation ix). The GET is strongly convinced that the public disclosure of
declarations cannot free the ACA Select Committee from its duty to carry out a thorough
scrutiny of those declarations of which it is the depositary. The GET also warns against
the “outsourcing” of this important controlling function to civil society and the media, as
it is somewhat unrealistic to think that the media can always be a non-partisan
watchdog. Bearing in mind that, under the revised ACA, the Committee would acquire
the right to scrutinise any declaration filed by an official, this puts an even greater
responsibility and creates more expectations as regards the outcomes of its work. The
Committee therefore will have to adopt a more proactive and rigorous approach,
abandon purely formalistic handling of declarations and replace it by a system where
these declarations are thoroughly scrutinised, thus showing an example to other
depositaries. GRECO recommends therefore that the authorities of Estonia take
determined measures to ensure a more in-depth examination of economic
interests’ declarations submitted by members of Parliament pursuant to the
Anti-Corruption Act, amongst others by strengthening operational and
administrative capacities of the Parliament’s Select Committee on the
65
Section 26.6 ACA.
66
Section 16 (6) ACA.
67
As a result of checks (comparison with information submitted in the previous year) conducted in 2009 and
2010, 10 deputies, respectively, were asked to submit new declarations, and in 2011, 33 deputies had to do so.
In 2010, 6 declarations were cross-checked against the Land Registry Journal resulting in the identification of 2
declarations containing inaccurate data; additionally, one declaration was found to be inaccurate but the
authorities concluded this was not intentional. Also, one declaration was cross-examined with the Land Registry
Journal and the Central Commercial Register. In 2011, 8 declarations were cross-examined with the Land
Registry Journal and one also with the Central Commercial Register. It is further reported that a thorough
examination of 2 more declarations was carried out. Moreover, following submission of annual declarations, due
to changes in the composition of property, new declarations were filed: by two deputies in 2009, three deputies
in 2010 and three deputies in 2011.
68
Subsequent to the visit, the authorities also indicated that the ACA Select Committee is supported by the
Parliament’s Chancellery (Legal Affairs and Research Department).
69
According to the 2004-2007 Anti-corruption Strategy of Estonia entitled “An Honest State”, the deterrent
effect of economic interests’ declarations is two-fold: firstly, the process of declaring has a disciplinary effect in
itself; secondly, this is an opportunity for the public to check those declarations which are subject to
publication. The Strategy calls for maintaining the process of declaring economic interests even though it is
admitted that the declarations themselves have not been pivotal in detecting cases of actual corruption.
19
Implementation of the Anti-Corruption Act. It is also important that the outcomes of
checks conducted by the ACA Select Committee and of the bodies reporting to it be
shared with the public on a regular basis.
Additional employment and other activities
66. Except for the information that approximately 15-20% of parliamentarians
exercise additional activities, the GET has failed to collect other meaningful data as
regards the observance by deputies of restrictions on accessory employment imposed by
the SMPA. No supervision in this field appears to be currently exercised. The GET was
told that a document had been prepared by the Legal Affairs and Research Department of
the Parliament’s Chancellery in order to help the Parliament’s Board to evaluate and
decide whether a particular activity is incompatible with the deputy’s status. Having
noted that the declarations on additional employment will be made redundant by the
revised ACA, which will introduce a single declaration merging information from the
declarations of economic interests and those on accessory activities, the GET is of the
opinion that a separate recommendation on this matter is dispensable.
Enforcement measures and immunity
67. The authorities indicate that the following misdemeanours and criminal offences
apply to situations of conflicts of interests involving members of Parliament:
- a violation of the rules on the obligation to submit an economic interests
declaration which is punishable under section 26.1 (2) ACA;
- submission of false information to a person, agency or committee verifying
declarations of economic interests which is punishable under section 26.2 ACA;
- a violation of restrictions on employment or activities or procedural restrictions
established by law which is punishable under section 26.3 ACA
- failure to notify a corruption act which is punishable under section 26.4 ACA;
- a corruption act entailing the receipt of income or gains derived from corrupt or
illegal practices which is punishable under section 26.5 ACA;
- a knowing violation to a large extent of a procedural restriction established by
the ACA which is punishable under section 300.1 PC;70 and
- a violation of restrictions on economic activities and assets of political parties
which is punishable under 402.1 PC.
68. Misdemeanour investigations against parliamentarians are carried out by the
Police and Border Guard Board, who are subordinated to the Ministry of the Interior. The
proceedings are governed by the Misdemeanour Procedure Code of 22 May 2002.
Sanctions foreseen for misdemeanours are pecuniary fines up to 300 fine units (approx.
1 200 Euros) that may be imposed by a court or an extra-judicial body.71
69. Pursuant to article 76 of the Constitution, a member of Parliament enjoys
immunity. Thus, criminal charges may only be brought against him/her on proposal by
the Chancellor of Justice and with the consent of the majority of Parliament. If necessary,
the Chancellor of Justice may examine the criminal file upon granting consent to the
procedural act.72 The detailed rules regarding the lifting of immunities are contained in
chapter 14 of the Criminal Procedure Code, which sets forth a special procedure for the
preparation of a statement of charges and for performance of procedural acts, and to a
limited extent also in the RPIRA.73
70
It is punishable by a fine or an imprisonment of up to one year.
71
Section 47 PC.
72
Section 377 of the Criminal Procedure Code.
73
For example, with regard to proceedings concerning a proposal by the Chancellor of Justice to grant consent
to the preparation of a statement of charges with regard to a parliamentarian contained in section 379 (1) CCP.
20
70. A deputy may be detained as a suspect, and preventive measures and search and
seizure of property may be conducted in his/her regard only following a request by the
Chief Public Prosecutor and with the consent by the Chancellor of Justice. The consent by
the latter is unnecessary in cases where a deputy is apprehended in flagrante delicto.
The Chief Public Prosecutor and the President of the Parliament, however, are to be
notified thereof.
71. A resolution by Parliament to grant consent to the preparation of a statement of
charges does not suspend performance of the deputy’s duties. Following receipt of the
relevant persons’ consent, criminal proceedings are conducted according to the general
rules.74
72. In the last three years, there were no cases of parliamentarians being charged for
corruption offences. As concerns irregularities pertaining to declarations of economic
interests, the authorities contend that, in the absence of deliberate attempts to submit
false information by members of Parliament, it was deemed unreasonable to initiate
misdemeanour proceedings by informing the police.
Training and awareness
73. At the beginning of the Parliament’s term, introductory trainings are held for new
deputies on the following topics: Parliament’s tasks, the status of a member of
Parliament, Parliament’s working bodies and work arrangements, the voting system,
salaries and compensations, services available to deputies. Lectures are provided by the
management of the Parliament’s Chancellery and by heads of departments. Advice on
ethical issues may be obtained by individual deputies from the ACA Select Committee
and from the Parliament’s Board. The Chancellery, whose primary objective is to create
organisational and economic conditions for the successful work of the Parliament’s Board,
deputies, committees and factions, provides general guidance and assistance to
parliamentarians.
74. As concerns awareness of the general public on the conduct expected from
parliamentarians, the authorities indicate that all laws are available on the Internet.
Furthermore, information on the procedures established by the Parliament’s Board and
on the activities pursued by the ACA Select Committee may be found on the Parliament’s
website.
75. The information gathered by the GET strongly suggests that the Estonian
authorities tend to give insufficient attention to corruption prevention through increased
awareness-raising. This seems to be the case of parliamentarians whose appreciation of
ethical issues does not appear to be satisfactory and who would benefit from systematic
awareness training. The GET’s attention was drawn, in particular, to insufficient guidance
provided to the newly elected parliamentarians on how to perform their duties. Also,
recalling the above issued comments and recommendations, the GET has not been
persuaded of the deputies’ knowledge of the intricacies of the ACA pertaining to gifts,
hospitality and other advantages and the disclosure of interests. GRECO therefore
recommends (i) the establishment of a specific source of confidential
counselling to provide parliamentarians with advice on ethical questions and
possible conflicts of interest in relation to their legal duties; and (ii) the
provision of regular awareness raising activities for members of Parliament (all
deputies but especially the new ones) covering issues, such as conflicts of
interest, acceptance of gifts, hospitality and other advantages, outside
employment, disclosure of interests and other obligations related to corruption
prevention. It is critical that educational and awareness materials based on practical
examples be developed in support of the above training programmes.
74
Section 381 CCP.
21
IV. CORRUPTION PREVENTION IN RESPECT OF JUDGES
Overview of the judicial system
Categories of courts and jurisdiction levels
76. The foundations of the judicial system are laid down in the Constitution. 75
Pursuant to article 146 thereof, justice shall be administered solely by the courts which
are independent and act in accordance with the Constitution and the laws. 76 The court
system comprises three levels: (i) county and administrative courts; (ii) circuit courts;
and (iii) the Supreme Court. The creation of specialised courts may be provided by the
law, the formation of emergency courts is prohibited. In addition to the Constitution, the
judicial system is regulated by the Courts Act (CA) of 19 June 2002.
77. The county courts and the administrative courts are courts of first instance. The
four county courts are responsible for hearing all criminal, misdemeanour and civil cases,
and the two administrative courts – all administrative cases. The county and the
administrative courts are divided into court houses. As of January 2012, there were 138
judges in the county courts and 25 judges in the administrative courts. Judges are
generally specialised in adjudicating on civil, administrative or criminal cases. This
principle, however, may not be respected in the very small court houses.
78. The administration of justice at the level of county courts involves the
participation of lay judges, pursuant to the codes of procedure. In the administration of
justice, a lay judge has equal rights with a judge. 77
79. The circuit courts are second instance courts and review judgments of the county
and administrative courts on the basis of appeals. There are two such courts with a total
of 38 judges.
80. The Supreme Court is the third instance court. It performs functions of: (i) the
highest court of general jurisdiction, (ii) the supreme administrative court; and (iii) the
constitutional court. The Supreme Court is composed of 19 justices.
81. A range of developments have affected the Estonian judicial system since the
country gained independence in 1991. Thus, all judges who sat on the bench during the
communist times had to re-apply for their posts. Out of 156 applicants, ten judges (or
6,4%) were not re-appointed.78 In 2007, the Court en banc comprising all Estonian
judges approved, for the first time, a set of principles for the development of the national
court system. These included transforming courts into an independent branch of power
and achieving full separation of powers, withdrawing the courts’ administration from the
executive and establishing an independent administrative supervisory body, as part of
the unified judicial system. 79 In March 2008, the Ministry of Justice established a working
group to prepare amendments to the CA. These were presented to Parliament in 2009
but the draft was withdrawn from the legislative proceeding in March 2011, upon
termination of the Parliament’s term of authority. As from 2011, the new government
has focused on issues, such as making the judicial proceedings less expensive and more
efficient (in particular, by introducing various IT tools), lowering state fees and increasing
75
Articles 146-153.
76
As previously mentioned, Article 4 of the Constitution provides that the activities of Parliament, of the
President of the Republic, of the Government of the Republic and of the courts shall be organised on the
principle of separation and balance of powers.
77
Section 102 CA.
78
Monitoring the EU Accession Process: Judicial Independence, Country reports, Open Society Institute, 2001,
p. 177.
79
European Judicial Systems. Edition 2012 (data 2010). Efficiency and quality of justice. European Commission
for the Efficiency of Justice.
22
the availability of free legal aid, ensuring a more effective administration of courts and
quality management.
Independence of the judiciary and the administration of courts
82. The principle of independence of judges is enshrined in the Constitution. In
addition to article 146, pertinent safeguards are contained in articles 147 and 153 and
include the appointment of judges for life; the removal from office on the grounds and in
line with the procedure prescribed by law and only pursuant to a court decision;
prohibition to hold any other elected or appointed position; the prescription by law of the
legal status and of guarantees of independence of judges; the principle of judicial
immunity. Sections 2 and 3 CA largely reiterate the aforementioned provisions. The
Criminal Procedure Code, moreover, safeguards the principle of free assessment of
evidence.80
83. Pursuant to section 45(1) CA, supervisory control over the performance of duties
by judges lies with the presidents of courts. Moreover, as concerns the first instance
court judges, they are additionally supervised by presidents of relevant circuit courts.
The performance of duties by the presidents of first and second instance courts is
supervised by the Minister of Justice who may demand explanations concerning the
administration of justice pursuant to specific requirements. 81
84. Neither individuals nor institutions may give directives to judges in individual
cases. Only presidents of courts, in the exercise of their supervisory duties, may instruct
judges to ensure the timely conduct of proceedings. Thus, if a judge fails to perform a
necessary procedural act without good reason (e.g. fails to schedule a session in due
time), a president of court is to decide on a measure which will provide an opportunity to
finalise the proceedings within reasonable time.82 In general, a president of court may
establish reasonable term for a judge to perform a procedural act, provide other
organisational guidelines, redistribute cases, taking into account the division of tasks
within the court, and in exceptional cases, deviate from the plan, if justified by the
peculiarities of the case, the specialisation of the judge and the workload of other judges.
85. Pursuant to the CA, the administration of courts has been split up. The courts of
first and second instance are governed by the Ministry of Justice, in co-operation with the
Council for the Administration of Courts (see further below). 83 The Ministry is responsible
for the courts’ budget, accounting, IT, housing, and training of clerks, under the
condition that it does not interfere with the administration of justice. 84 Budgets are
prepared in consultation with courts’ presidents and directors and pursuant to the
preliminary opinion by the Council on the principles of the formation and amendment of
annual budgets of courts. Budgets may be reviewed during a budgetary year, with good
reason, following consultation with presidents and directors of courts. 85 The Ministry of
Justice furthermore collects statistics and prepares reports on the functioning of courts. 86
86. The Supreme Court, as a constitutional institution, is totally independent of the
executive and autonomous in all administrative and organisational matters. Its budget is
80
Section 61 of the Criminal Procedure Code stipulates that no evidence has a predetermined weight and that a
court shall evaluate all evidence in the aggregate, according to the judges’ conscience.
81
Section 45(2) CA.
82
Section 45, sub-section 1.1 CA.
83
Section 39 CA.
84
Section 39, sub-section 4.1 CA.
85
Section 43 CA.
86
Section 46 CA. The performance of courts is evaluated on the basis of the following indicators: length of
proceedings, pending cases and backlogs, productivity of judges and court staff - See European Judicial
Systems. Edition 2012 (data 2010). Efficiency and quality of justice. European Commission for the Efficiency of
Justice.
23
determined directly by the State Budget’s Act,87 following consultations with the Ministry
of Finance. The Supreme Court Chief Justice presents a review on the administration of
courts, administration of justice and uniform application of law to Parliament on an
annual basis.88
87. Judicial independence and the impartiality of judges are fundamental principles in
a State governed by the rule of law; they benefit the citizens and society at large
as they protect judicial decision-making from improper influence and are ultimately a
guarantee of fair court trials. The judiciary in Estonia is widely regarded as independent,
relatively transparent and accountable. While the GET largely concurs with this
assessment, it cannot disregard legal and institutional limits that may appear as
diminishing the level of judicial independence. Thus, the Ministry of Justice’s overall
control over the budget and the budgetary process, as well as its right to re-allocate
funding amongst courts during the budgetary year is perceived by some as posing a
threat to judicial independence. Although there is no evidence that the Ministry has been
abusing its powers in practice, an impression could arise that it may exert pressure on
courts by influencing the amount of funding they receive, in particular, since presidents
of first and second instance courts are appointed by the Minister of Justice, following
approval by the Council for the Administration of Courts, and the performance of their
duties is supervised by the Minister.89 In view of the foregoing, the GET renders its full
support to the objectives of the national court system, as announced in 2007 by the
Court en banc, namely to achieve in law and in practice the principles of separation and
of balance of powers.
Consultative and decision-making bodies
88. Consultative and decision-making bodies of judges include the Council for the
Administration of Courts, the Judge’s Examination Committee and the Disciplinary
Chamber of the Supreme Court.
89. The Council for the Administration of Courts (Council) is composed of the Supreme
Court Chief Justice, five judges elected for three years by the Court en banc, two
members of Parliament, a sworn advocate appointed by the Bar Association, the Chief
Public Prosecutor and the Chancellor of Justice. The Minister of Justice participates in the
Council with the right to speak. The Council grants approval, inter alia, as regards the
determination of the territorial jurisdiction and the structure of courts, the number of
judges in courts, the appointment and premature dismissal of presidents of courts, the
number of lay judges and of candidates for the judicial office. The Council furthermore
provides a preliminary opinion on the principles of formation or amendment of the annual
budget of first and second instance courts, prepares opinions on candidates for a vacant
post of a Supreme Court judge and on the release of a judge from office due to health
reasons, discusses other issues at the initiative of the Supreme Court Chief Justice or the
Minister of Justice.90 Clerical support to the Council is provided by the Ministry of Justice.
It would appear that, over the years, the Council’s profile has gained in importance and
the creation of this institution has enabled the judiciary to bring up and discuss important
issues.
87
As concerns first and second instance courts, their budget is presented as part of the Ministry of Justice’s
budget – See Monitoring the EU Accession Process: Judicial Independence, Country reports, Open Society
Institute, 2001, p. 167.
88
Section 27(3) CA.
89
Presidents of first instance courts are appointed by the Minister of Justice for a period of five years from
among the judges of the court and having considered the opinion of the full court. The same procedure is used
for the appointment of presidents of second instance courts for a seven-year period. The Minister, however, is
not vested with a right of command or disciplinary authority over the judges – See Sections 12(1), 20(1),
24(1), 39(3) and 45(2) CA.
90
Section 41 CA.
24
90. The Judges’ Examination Committee is responsible for the appointment of judges.
It is formed for the period of five years and composed of two first instance court judges
elected by the Court en banc, two circuit court judges, two Supreme Court justices, one
jurist designated by the University of Tartu Law Faculty, a representative of the Ministry
of Justice, a sworn advocate designated by the Bar Association and a public prosecutor.
For the purposes of an examination, a panel consisting of at least five members,
including three judges, is set up by the Committee’s chair.91
91. The Disciplinary Chamber of the Supreme Court is the authority in charge of the
disciplinary proceedings against judges (see further below).
Recruitment, career and conditions of service
Recruitment requirements
92. Candidates for a judicial post must conform to the requirements set out in the CA.
Thus, an Estonian national may be appointed as a judge if s/he has satisfied the
minimum requirements which are: conferral of a Master’s degree (which must be
officially certified), or a corresponding qualification for the purposes of sub-section
28(22) of the Education Act or a corresponding foreign qualification, proficiency of the
Estonian language at the C1 level provided for by the Language Act or a corresponding
level, high moral character, and abilities and personal characteristics necessary for
working as a judge.92
93. Applicants who are barred from access to the judgeship include persons convicted
of a criminal offence, removed from the office of judge, notary or bailiff, expelled from
the Estonian Bar Association, released from the public service for a disciplinary offence,
declared bankrupt, and those whose right to exercise the profession of auditor or patent
agent has been withdrawn, except pursuant to own application.93
94. An applicant who satisfies the above requirements may participate in an open call
for applications which is published in the Official Journal (“Ametlikud Teadaanded”) by
the Ministry of Justice. Following an assessment of his/her legal knowledge and an
interview with the Judges’ Examination Committee, the applicant may become a
candidate for judicial office.94 A candidate for judicial office is a remunerated official of a
judicial institution appointed by a president of court, upon submission by the Judges’
Examination Committee, to complete a two-year preparatory service for the office of
judge. A person who has worked as a sworn advocate or prosecutor, except an assistant
prosecutor, for two years immediately prior to passing a judge’s exam, or a person who
has previously worked as a judge, provided that no more than ten years have elapsed
since his/her release from office, are exempt from the preparatory service. 95 Persons who
are experienced and recognised lawyers may also be exempted by the Committee. 96
Appointment procedure and career advancement97
95. Judges are appointed on the basis of a public competition announced in the
Official Journal. Vacancies in the lower courts are announced by the Ministry of Justice
91
Section 69 CA.
92
Section 47(1) CA.
93
Section 47(2) CA.
94
Section 61 CA.
95
Section 50(2) CA.
96
The committee may also shorten the preparatory service by up to one year in respect of a person who has
worked as an advocate or prosecutor, consultant of court, law clerk or judge for at least two years - see section
64 CA.
97
Access to higher posts within the judiciary is open to both persons already holding the post of judge and
those from outside the judiciary.
25
and in the Supreme Court - by the Chief Justice. All applications are submitted to the
Supreme Court’s Chief Justice.98
96. A candidate for judicial office who has completed (or has been exempted from)
the preparatory training and who has passed a judge’s exam may be appointed as county
or administrative court judge. An experienced and recognised lawyer who has passed a
judge’s exam (or has been exempted there from in case s/he has worked as a judge
directly before appointment) may be appointed as a circuit court judge. An experienced
and recognised lawyer may be appointed as a Supreme Court justice. 99
97. The suitability of a candidate’s personal characteristics is assessed on the basis of
an interview, a security check, and any other information and enquiries carried out by
the Judge’s Examination Committee.100 The security check is performed by the Security
Police, in accordance with the Security Authorities Act. In the case of a positive
assessment, a candidate may be appointed as judge within nine months from the
moment the Security Police forwards relevant information to the Judges’ Examination
Committee. The Committee submits its decision and accompanying documents to the
Supreme Court en banc and notifies the examinee thereof. The Supreme Court en banc
makes a proposal to the President of the Republic.
98. Judges are appointed to office for life. Judges of first and second instance courts
are appointed by the President of the Republic, on proposal by the Supreme Court en
banc. The Supreme Court en banc is to consider first the opinion of the court for which
the person runs as a candidate. The Supreme Court justices are appointed by Parliament,
upon submission by the Supreme Court Chief Justice. The Chief Justice is to consider first
the opinion of the Supreme Court en banc and the Council for the Administration of
Courts. The Supreme Court Chief Justice is appointed by Parliament, upon proposal by
the President of the Republic, for a non-renewable term of nine years.101 A decision on
the appointment as a judge is subject to appeal in the Supreme Court’s Constitutional
Review Chamber. There are no promotion procedures that would be separate from the
application of an ordinary appointment procedure. This means that a judge will have to
apply for a position with a higher rank through public competition process as referred to
above.
99. The GET notes that the selection and appointment procedures are predominantly
led by the judiciary. The Judges’ Examination Committee and the Supreme Court appear
to play the role of guarantors of due process, assuring the collegiality of the decision-
making process and shielding it from undue influence. Overall, the initial appointments to
the post of judge are based on clear and professional criteria, the only debatable aspect
being the personal characteristics of a judge. Due to the size of Estonia and its lawyers’
community, background information on the applicants is generally well-known in
advance. The GET notes, however, that the principle of independent and impartial review
of any administrative decisions appears not to be fully respected in the case of appeal
proceedings concerning the appointment of a judge. Thus, the Supreme Court en banc
consisting of 19 justices makes proposals for the appointment of the first and second
instance court judges, while the Constitutional Review Chamber of the Supreme Court
composed of nine justices serves as the appeal instance. This creates a problem of
“structural impartiality” addressed in several decisions of the European Court of Human
Rights in respect of other Council of Europe member states. As concerns the appointment
98
The above procedure does not apply to cases of transfer of judges to another court or to the service at the
Supreme Court or at the Ministry of Justice – see sections 53, 57 and 58 CA.
99
See sections 50(1), 51 and 52 CA.
100
A security check is obligatory, except for candidates who already hold a valid permit to access state secrets
classified as top secret. It entails completing a form, which is used to apply for access to state secrets, and
signing a consent form, which permits relevant agencies to collect background information on the candidate –
see sections 54 (1-3) and 61.1 CA.
101
Section 27(1) and 27(9) CA.
26
of judges to higher positions within the judiciary, the information gathered on-site
strongly suggests the lack of objective criteria, upon which such decisions are made. In
this connection, interlocutors met by the GET referred to a measure of subjectivity and
favouritism and the absence of cases where a promotion was challenged in court, with
one exception. GRECO therefore recommends that (i) decisions on appointment
to the post of first and second instance court judge be subject to independent
appeal procedure; and (ii) objective criteria for the professional advancement of
judges be introduced with the aim of enhancing its uniformity, predictability
and transparency. Such criteria could be used as a benchmark in any eventual appeal
proceedings. Furthermore, the objective criteria could potentially involve results of
periodical quality assessments of judges’ performance, should such a system be
introduced by Estonia as suggested in paragraph 101 below.
Evaluation of a judge’s performance
100. As was already mentioned, supervisory control over the performance of duties by
a judge is exercised by the president of court. During the visit, the GET was told that a
system of quality assessment of a judge’s work was in place and carried out by means of
informal annual interviews, practiced particularly during the first years following a judge’s
appointment. In the absence of performance targets being defined for individual judges,
their productivity is assessed, as a rule, based on the number of cases decided on and on
the reversal rate on appeal, as well as some other personal statistics. The introduction of
a more formalised review system was planned as part of the 2008 judicial reform. It was
allegedly viewed by some judges as an attempt to infringe on their judicial independence.
101. The GET is convinced that an effective system of periodical performance reviews
allows not only for the monitoring of a judge’s performance and its progression over time
but also for an early detection of problems encountered in the fulfilment of the judge’s
duties. Thus, a high workload and backlog of cases which are reportedly confronted by
many of the Estonian judges may be and should be addressed at an earlier stage.
Furthermore, as was already suggested, information from the periodical reviews may be
used for substantiating an opinion/decision on the eventual advancement of a judge to a
higher rank. The GET is particularly concerned that, other than judicial review, there
appears to be no system of efficient case management within courts. In view of the
foregoing, GRECO recommends that the Estonian authorities consider introducing
a system of periodical quality assessments of a judge’s professional
performance, based on standardised and objective criteria, with due regard
being paid to the principle of judicial independence. Such a system could also be
seen as a step towards a more transparent advancement within the judiciary.
Transfer of a judge
102. The transfer of a judge to another post may only occur at the request or with the
consent of the judge. The Supreme Court en banc may appoint a judge to another court
of the same or lower instance with the consent of a judge and on proposal by the
Minister of Justice. The Supreme Court en banc may also appoint a first instance court
judge with his/her consent to permanent service in another court house in the same
court. In the interests of the administration of justice, a president of court may
permanently appoint a judge without his/her consent to another court house within the
same court. In such cases, the president of the court is to consider the opinion of the full
court.102 At his/her request and with the consent of a president of court, a judge may
furthermore be transferred to the Supreme Court or to the Ministry of Justice, with
temporary suspension from service. A judge may also be elected or appointed to an
international court institution or an international civil mission, which entails the
102
Section 57 CA.
27
suspension of the authority and of service relationship of the judge.103 A decision
concerning the transfer may be appealed to the administrative court.
Termination of service and dismissal from office
103. Termination of an active judicial term occurs as a result of a judge having reached
the maximum retirement age, which is 67 years, unless the maximum age of the judge is
increased pursuant to a specific procedure. 104 In accordance with the Constitution, the
grounds and procedure for the dismissal of a judge are to be provided for by law, and the
judges are to be removed only pursuant to a court decision.105 Grounds for the dismissal
include: a request by the judge; the attainment of 68 years of age; the unsuitability for
office within three years of appointment; health problems hindering the work as a judge;
liquidation of a court or reduction in the number of judges; the impossibility to return to
a former position following service in the Supreme Court, the Ministry of Justice, an
international court institution or an international civil mission and the lack of will to be
transferred to another court; the appointment or election to the position or office
contrary to the restrictions imposed on judges; the revelation of facts precluding the
appointment as a judge.106 Additionally, a judge is removed from office in the case of a
conviction by a court for a criminal offence or a decision by the Disciplinary Chamber of
the Supreme Court on his/her removal from office. 107
104. Judges of first and second instance courts are dismissed from office by the
President of the Republic, on proposal by the Supreme Court Chief Justice. The Supreme
Court Chief Justice is released by Parliament, on proposal by the President of the
Republic, except when the Chief Justice is unable to perform his/her duties for six
consecutive months and is released from office following a decision by the Supreme
Court en banc, on a reasoned request by the President of the Republic.108 The other
justices of the Supreme Court are to be released by Parliament, on proposal by the
Supreme Court Chief Justice. A decision on the dismissal is subject to appeal.
105. Judges in Estonia are subject to the three-year probationary period.109 During this
term, the president of the court submits, on an annual basis, his/her opinion on a judge
to the Judges’ Examination Committee. In the case of a negative assessment, the
Committee and the Supreme Court en banc may decide on the launching of disciplinary
proceedings with a view to releasing a judge from office due to unsuitability. 110 The
rationale for introducing such a lengthy probationary period has been the relatively low
level of qualifications of candidates applying for judgeship in the early 1990s, as well as
the desirability of better criteria in determining the suitability of individuals for the office
of judge. The GET is satisfied that a decision on the release of a judge from office due to
unsuitability is to be made by the Supreme Court en banc based on objective criteria
(e.g. low efficiency, poor quality of decisions, complaints from parties to the proceedings,
commission of indecent acts) and following thorough assessment of all information
characterising the judge’s work. Such a decision may be challenged by the judge
concerned. The GET also notes that, so far, only one judge has been released from office
during the probationary period which was due to the commission of an indecent act.
103
Sections 58 and 58.1 CA.
104
Sections 48 and 99.1 CA.
105
Article 147 of the Constitution.
106
Section 99 CA.
107
Section 101 CA.
108
Section 27(6) CA.
109
The GET also notes that such a system has not been put in place in the prosecution service.
110
Section 100 CA.
28
Salaries and benefits
106. Judges’ salaries and benefits are regulated by sections 76-86 CA. Salaries are
calculated pursuant to the Salaries of State Public Servants Appointed by Parliament or
President of the Republic Act. The average monthly salary of a first instance court judge
is 2 666,00 Euros, of a second instance court judge – 2999,43 Euros, and of a Supreme
Court justice – 3 665,97 Euros. Seniority bonus is offered in the amount of 5% of a
judge’s salary starting from the fifth year of service, 10% – from the tenth year of
service, and 15% – from the fifteenth year of service.
107. Depending on the number of judges in a court, presidents of first and second
instance courts receive a functional allowance ranging between 15% and 35% of a
judge’s salary. Upon proposal by the president of the court and with the consent of the
Council for the Administration of Courts, the Minister of Justice may determine an
allowance for a manager of a court house in the amount ranging, depending on the
number of judges, between 5% and 10% of the judge’s salary. Judges supervising
candidates for judicial office, candidates for assistant judge and student trainees are
entitled to an allowance equal to 5% of a judge’s salary for each supervised person.
108. Together with the additional remuneration, the salary of a judge may not exceed
that of a higher court judge. Similarly, the salary of the Supreme Court justice, together
with additional allowances, may not exceed that of the Supreme Court Chief Justice.
109. As of July 2013, judges’ salaries will be regulated by the Salaries of Higher State
Servants Act, which will provide for the different salary rates. As in the cases of members
of Parliament, the salary of a judge is to be calculated as a base salary, i.e. 5 200 Euros,
multiplied by a factor. For the salary of the Supreme Court Chief Justice, the factor shall
be 1,0; for the Supreme Court justices – 0,85; for a second instance court judge – 0,75;
and for a first instance court judge – 0,65.
110. A judge’s pension comprises the old-age pension, the superannuated pension (for
judges with at least 30 years of professional experience), the incapacity pension and the
survivor’s pension for the judge’s family members. 111 A one-time benefit is to be
provided to a judge’s family members in case the judge is killed as a result of a criminal
attack while s/he was performing his/her duties.112
Lay judges
111. The criteria for appointments as a lay judge stipulate that the candidate must be
an Estonian national with full legal capacity between 25 and 70 years of age, residing in
Estonia, proficient in the Estonian language at an advanced level, with suitable moral
characteristics. The grounds for rejection are similar to those applicable to judges, and
are complemented by a prohibition to appoint those serving in a court, prosecutor’s
office, the police, armed forces, members of Government, Parliament, rural municipality
or city government or acting as President of the Republic or county governor. 113
112. Candidates are elected by local government councils. The number of candidates is
determined by the president of a county court in respect of each local government within
his/her jurisdiction whilst ensuring its proportionality to the ratio of the number of
residents in the local government’ territory and the number of residents in the territorial
jurisdiction of the court.114 The list of candidates is published and may be contested by
any citizen to the specifically designated committee within a county court. 115 The number
111
Sections 78-81 CA.
112
Section 83 CA.
113
Section 103 CA.
114
Section 106 CA.
115
Section 107 CA.
29
of lay judges in each county court is determined by the Ministry of Justice, with the
consent of the Council for the Administration of Courts and after due consideration of the
opinion of the county court en banc.116
113. Lay judges are appointed for not more than two consecutive terms of four years
by the above committee, which is composed of the president of a county court, one
judge elected by the court en banc and one member per each local government council
elected from among its members. The appointment procedure entails the consideration
of a candidate’s suitability, and if any, the reasoned objections filed against him/her.
Their appointments should be guided by the principle that lay judges shall be of different
sex, age, social status and professional group. Lay judges are obliged to take an oath of
office.
114. The remuneration of a lay judge per each day of participation in the
administration of justice is calculated as the salary rate of the highest state public
servant multiplied by a coefficient of 0,024. Expenses related to the participation in the
administration of justice are subject to reimbursement, and a pension is provided in case
where a lay judge is subject to a criminal attack. 117
Case management and court procedure
Assignment of cases
115. All complaints, petitions and protests are received, checked and registered on the
day of their arrival in the Court Information System. This is a database that was set up
by the Ministry of Justice with a view to structuring the courts’ work, collecting statistics,
systematising decisions and making them available to other courts and the public. 118 The
assignment of cases is carried out pursuant to a court’s “division of tasks plan”. The
assignment is computer-based but takes into account the judges’ workload. In the
Supreme Court, acceptance for proceedings is decided by a panel consisting of at least
three justices. A matter is accepted if the hearing thereof is requested by at least one
justice.119
116. While adjudicating on civil and administrative matters, the courts may render
each other assistance in the performance of procedural acts. Assistance may be
requested in cases where the performance of a procedural act by another court would
facilitate the hearing of a matter, save the time of the court or of parties concerned, or
reduce procedural expenses.120
The principle of hearing cases without undue delay
117. Pursuant to different acts (Constitution, codes of procedure, the European
Convention on Human Rights), a judge is bound to adjudicate a matter within a
reasonable time. The Code of Ethics of the Estonian judges also stipulates that a judge is
to resolve cases within reasonable time. Violation of this requirement may bring about
disciplinary proceedings against a judge. The authorities furthermore indicate that a
request to accelerate a proceeding can be made if a matter has been in court for at least
nine months and the court has failed to take the necessary steps without good reason. 121
It is also possible to terminate criminal proceedings in case pre-trial and court
proceedings have exceeded the reasonable time requirement. 122
116
Section 14 CA.
117
Sections 112 and 113 CA.
118
Section 34 CA.
119
Section 26(2) CA.
120
Section 15 CA and section 14 of the Code of Administrative Procedures.
121
Section 274.1 of the Criminal Procedure Code.
122
Pursuant to sections 205.2 and 274 of the Criminal Procedure Code.
30
118. In the course of its visit, the GET has learnt that the excessive length of
proceedings has been a serious problem confronting the judiciary. 123 In order to address
this issue, as from 2008, “protocols of collective intentions” were concluded between the
Ministry of Justice and presidents of first and second instance courts, with a view to
ensuring that by the end of the year, there were only a fixed percentage of cases with
the overall length of proceedings exceeding two years. In 2011, the Supreme Court
published a report, which affirmed that while average statistics on the duration of a
single proceeding was not unduly excessive, in effect, these did not count whether a case
was sent back on appeal to a lower court for re-adjudication. In such instances the case
was counted as a new judicial procedure, whereas for the parties involved, it remained
the same on-going case. Recently, an instruction was issued by the Council for the
Administration of Courts to elaborate a manual of good practices in court quality
management. It is supposed to provide for objective criteria on the containment of
judicial proceedings to ensure a reasonable time requirement. The GET understands that
a series of measures are being designed to ensure Estonia’s greater adherence to the
principle of hearing cases without undue delay. The GET therefore, encourages the
authorities to pursue those efforts with the utmost vigour.
The principle of public hearing
119. The principle of public hearing is provided for in article 24 of the Constitution.
Exceptions may only be made to protect a state or business secret, morals or the private
life and family life of a person or where the interests of a minor, a victim or justice so
require. Judgments are to be pronounced publicly, except where the interests of a minor,
a spouse or a victim require otherwise. Identical provisions are contained in the Codes of
Criminal, Civil and Administrative Procedure124 and are complimented by a provision
allowing for a restricted public hearing in order to protect classified information of foreign
states, and in case the security of the court is in danger. 125
Ethical principles and rules of conduct
120. Ethical principles and core values of the judicial system are included in the CA and
in the Code of Ethics of the Estonian Judges (CEEJ), adopted on 13 February 2002 by the
Court en banc. In accordance with section 70 CA, a judge is to perform his/her duties in
an impartial manner, without having a vested interest in the case, must comply with
service interests also outside work and refrain from acts which may prejudice the court’s
reputation. This provision also applies to lay judges.
121. The CEEJ prescribes the following conduct for a judge: preserving the reputation
of integrity and independence of the judiciary, exercising the power vested in a judge in
the best possible way, arranging life and activities, including legal activities, so that the
threat of possible conflicts of interest is minimal, behaving in a manner compatible with
the dignity of the judicial office, being a paragon of a law-abiding person observing the
legal order.126 A judge is furthermore obliged to point out to a colleague his/her
indisputably indecent behaviour and any violations of the Code and endeavour to put an
end to such violations. If need be, a judge is to inform the full court and its president
thereof.127 Requirements of professional ethics are to be interpreted on the basis of law,
decisions of the Supreme Court’s Disciplinary Chamber, the established practice among
123
Also, the European Court of Human Rights held on several occasions in the past that Estonia was in breach
of the right to a fair trial due to the excessively long judicial procedures - see e.g. Treial v. Estonia, Application
no. 48129/99, Strasbourg, 2 December 2003; Shchiglitsov v. Estonia, Application no. 35062/03, Strasbourg, 18
January 2007.
124
Sections 11 and 12 of the Criminal Procedure Code, sections 37-42 of the Code of Civil Procedure and
section 77 of the Administrative Procedure Code.
125
Section 12(2) CPC.
126
Sections 1-3,6, 8 CEEJ.
127
Section 9 CEEJ.
31
the judiciary, as well as the opinions of senior colleagues and the conscience of a judge.
Behaviour not covered by the Code is to be guided by the aforementioned principles. 128
The GET acknowledges that the CEEJ may be qualified as a comprehensive document,
presenting in a coherent manner the standards of the judicial integrity and conduct.
Conflicts of interest
122. The legal framework for the prevention and resolution of conflicts of interest is
provided by relevant provisions of (1) the procedural codes, as regards the
disqualification of judges from isolated cases; (2) the Courts Act, which contains, inter
alia, rules on the accessory activities of judges; (3) the Anti-Corruption Act, since judges
are deemed to be officials in the meaning of the Act; and (4) the Code of Ethics of the
Estonian Judges.
123. The definition of conflicts of interest is provided in section 25 ACA, which
stipulates that conflicts of interest occur if an official, including a judge, in the course of
his/her duties, is required to make or participate in the making of a decision which
significantly influences his/her economic interests or that of his/her close relatives or
legal persons, in which the official or his/her close relatives are partners, shareholders,
members of management or supervisory boards or audit committees. An official whose
duty is to participate in the making of decisions is to notify promptly thereof a body
concerned, his/her immediate superior or a person or body with the employment or
appointment authority thereof and to forego the making of the decision. An official who is
competent to make a decision on his/her own is to remove him/herself from the process
and to notify his/her immediate superior thereof. Alongside members of Parliament,
judges are also obliged to abide by the procedural restrictions and abstain from
committing acts of corruption, as referred to by the aforementioned provisions of the
ACA (see paragraphs 41-44 above).
Prohibition or restriction of certain activities
Incompatibilities and accessory activities
124. According to the Constitution, a judge may not hold any other elected or
appointed office, except in the cases prescribed by law. 129 Section 49 CA clarifies that a
judge may not undertake additional employment, except for that of teaching or research,
so long as this does not undermine the performance of his/her duties or the independent
administration of justice. Moreover, a judge may not be a member of Parliament, political
party, rural municipality or city council, a founder, managing partner, member of a
management board or supervisory board of a company, director of a branch of a foreign
company, trustee in bankruptcy, member of a bankruptcy committee or a compulsory
administrator of immovable property, or arbitrator in a dispute. Above-mentioned
conflicts of interest are to be notified to a president of court and subject to disciplinary
liability.
125. Furthermore, misdemeanour liability has been established for officials, including
judges, for violations of the restrictions on additional employment and activities, and of
procedural restrictions under section 26.3 ACA, and punishable by a fine of up to 300 fine
units (approx. 1 200 Euros).
128
Section 10 CEEJ.
129
Article 147 of the Constitution.
32
Recusal and routine withdrawal
126. The grounds for a judge’s removal from a case are provided in the codes of civil,
administrative and criminal procedure.130 They include situations, inter alia, where a
judge, his/her spouse or cohabitee, close relatives or close relatives of the judge’s spouse
or cohabitee is a party to the proceedings, where the judge has acted as a representative
or adviser to one of the parties or conducted pre-trial proceedings or participated in the
adoption of a decision which has been subsequently annulled by a higher court. A judge
must also withdraw him/herself in cases where there are other circumstances which put
in doubt his/her impartiality.131 If a judge has recused him/herself from a proceeding in
criminal matters and cannot be replaced within the same court, a president of a circuit
court refers the matter for hearing to another county court within the territorial
jurisdiction of the circuit court, subject to the approval by the Supreme Court Chief
Justice. The period of limitation for challenging a biased judge is not specified in the law.
The authorities submit that, in order for a petition not to turn into a deliberate elongation
of proceedings, it has to be submitted immediately after the basis for removing a judge
has become evident. Nevertheless, if such evidence were to become known at a later
stage of the process, a possibility for challenging a biased judge would still be
maintained.
127. The GET observes that parties to a judicial proceeding have the right to challenge
the impartiality of a judge and that this right is being exercised in practice. That said,
from the interviews held on-site, the GET concluded that judges would only consider
withdrawing from a case when formally challenged by one of the parties but not on their
own initiative, since self-recusal was perceived by many of them as dishonourable.
Nevertheless, the GET is satisfied that statistics shared with it subsequent to the visit
clearly indicate that the practice of judges’ self-recusal has been rather widespread. In
light of these circumstances, a recommendation on this issue is dispensable.
Gifts
128. There are no detailed regulations on the acceptance of gifts specifically by judges.
The authorities refer to the aforementioned section 26 ACA, which prohibits the
solicitation and acceptance of gifts and benefits by an official (including judges), if this
may undermine, directly or indirectly, the impartial performance of the official’s duties
(see paragraph 45 above). The prohibition of gifts is also included in the Code of Ethics of
the Estonian Judges.132 It stipulates that a judge may not ask for or accept presents,
bequests, loans or other favours in relation to what s/he has done, must do or avoid
doing in the exercise of his/her duties. This requirement applies to the judge’s family,
court staff and persons under his/her influence, discretion or power. The GET took note
of the opinion expressed by Transparency International Estonia representatives, who
stated that the cultural background in the country was generally supportive of the judicial
integrity and there was no tradition of making gifts to judges. Interviews held with the
judges appear to affirm this statement.
Post-employment restrictions
129. There are no post-employment restrictions applicable to judges, except for those
which continue binding a judge upon release from office due to his/her age. 133 Solitary
cases where judges resign from office in order to assume work in the private sector are
rare and not seen as a threat to the judicial independence.
130
Sections 23-30 of the Civil Procedure Code, section 13 of the Administrative Procedure Code and sections
49-50 of the Criminal Procedure Code.
131
Section 23(7) of the Civil Procedure Code and Sections 49(6) and 49.1(1) of the Criminal Procedure Code.
132
Section 26 CEEJ.
133
Since judges are appointed for life, the employment restrictions contained in section CA are applicable also
following their release from office due to age.
33
Third party contacts, confidential information
130. As concerns the communication between a judge and a third party on a specific
case outside the official procedure, the authorities refer to sections 5 and 6 ACA, which
contains a prohibition for the officials (including judges) to enter into relationships with
natural and legal persons involving corruption risks (also see paragraph 43 above).
Furthermore, pursuant to the Code of Ethics of the Estonian Judges, a judge must refrain
from political and business lunches and get-togethers with participants in a proceeding, if
this may prejudice his/her impartiality and give rise to conflicts of interest. In personal
relations with legal professionals practicing in court, a judge is to avoid situations which
could give rise to doubts of favouritism or impartiality, or the appearance thereof.
Personal contacts of a judge may not affect his/her work.134
131. As regards the duty of confidentiality, a judge is bound to keep confidential
information which became known to him/her in the course of the proceeding held in
camera.135 The duty is of an indefinite term and remains valid also after the service
relationship has been terminated. The treatment of confidential information is carried out
pursuant to the Penal Code (PC) and the CA. The PC prohibits, inter alia, the disclosure
and publication of state secrets and of classified information belonging to foreign
states;136 the unlawful disclosure of information related to pre-trial proceedings in
criminal matters and to surveillance activities carried out in order to prevent or combat a
criminal offence;137 and the violation of a confidentiality requirement imposed by a court
ruling.138 In judicial proceedings and in pre-trial proceedings in criminal matters,
confidential information may be disclosed only following permission granted by the
Supreme Court en banc. The misuse of confidential information may be regarded as a
disciplinary offence amenable to disciplinary penalties. The duty of confidentiality and of
confidentiality of deliberations also applies to lay judges.
Declaration of assets, income, liabilities and interests
132. Judges, as officials, are bound to submit declarations of economic interests,
pursuant to the rules also applicable to members of Parliament and described above (see
paragraphs 56-61 above). First and second instance court judges present their
statements to the Ministry of Justice, while the Chief Justice and justices of the Supreme
Court, as well as presidents of first and second instance courts file their declarations with
the Parliament’s Anti-Corruption Select Committee.139 Judges’ declarations are made
public in the on-line State Gazette, except for personal data, information on the income,
taxable and dividend income and contents of the judges’ marital property contracts. Late
submission or the filing of incomplete or false declaration is sanctioned by a fine of up to
300 fine units (approx. 1 200 Euros).140 The rules on declarations are enforced in the
course of misdemeanour proceedings, and the depositary may propose that disciplinary
proceedings be brought against the official concerned, depending on the seriousness of
the breach of official duties.
Supervision
Ethical principles and conflicts of interests
133. Although some elements of a corruption prevention policy within the Estonian
judiciary are currently in place, namely the Code of Ethics of the Estonian Judges and
134
Sections 20 and 23 CEEJ.
135
Section 71 CA.
136
Sections 241 and 242 PC.
137
Section 316.1 PC.
138
Section 323.1 PC.
139
Section 14 (2) ACA.
140
See sections 26.1(2) and 26.2 ACA.
34
disciplinary proceedings, a focused policy for systematic prevention and management of
corruption risks does not exist. Thus, it would appear that insufficient attention has been
given to integrity and conflicts of interest by the supervisory authorities within the
different court layers. Even though many interlocutors gave examples of potential
professional judicial misconduct (especially, the delaying of cases), it was made clear to
the GET that disciplinary proceedings were initiated only once soft measures, such as
informal persuasion of a judge concerned, have been exhausted. Also, although the
obligation to report misdemeanours and misconduct provided for by the ACA and the
Code of Ethics of the Estonian Judges was often emphasised, when given concrete
examples, judges admitted that they would be hesitant to report them to a superior but
would rather settle the matter with the wrongdoer, and only after the act was committed
the second or third time, they would report the matter to their superior. Additionally, the
GET regrets that monitoring compliance by judges with ethical principles and, more
specifically, with the Code of Ethics of the Estonian Judges has not been assigned to a
designated authority within the judiciary. The GET would like to recall the importance of
the proper supervision of rules pertaining to conflicts of interest. In view of the foregoing,
GRECO recommends that (i) a deliberate policy for preventing and managing
conflicts of interest and corruption risks be developed within the judiciary; and
(ii) a system be put in place to ensure compliance by judges with the
aforementioned policy, including the Code of Ethics of the Estonian judges.
Additional employment and activities
134. The taking up of an additional employment by a judge is authorised by the
president of court.141 The GET is satisfied that supervision over accessory activities,
namely teaching and research, carried out by judges appears to be exercised in an
adequate manner.
Declarations of economic interests
135. As stated above, two institutions act as the depositaries of the judges’ economic
interests’ declarations: the Ministry of Justice collects declarations of the first and second
instance court judges, and the Parliament’s ACA Select Committee fulfils the same
function vis-à-vis the declarations of the Supreme Court justices. Pursuant to section 12
ACA, the depositary organises the timely collection, verification, storage and publication
of declarations. However, unless the official concerned, including a judge, is suspected of
corruption, the depository is not obliged to verify the accuracy of the declarations’
content.
136. The GET has already expressed misgivings as to the philosophy and approach
pursued by the Parliament’s ACA Select Committee in respect of the supervision of
declarations of economic interests of members of Parliament (see paragraphs 64-65
above). These considerations apply mutatis mutandis to the supervision of declarations
of the Supreme Court justices filed with the same body. As concerns the declarations of
first and second instance court judges, the control performed by the Ministry of Justice is
similarly inadequate. No in-depth analysis of the information contained in the
declarations is currently being performed, under the pretext that these are subject to
public disclosure. Out of all declarations presented to the Ministry, only around 20 are
checked for compliance with information contained in the public registers, and just one
official has been assigned to perform these checks, in addition to the core duties. 142 The
GET is convinced that, being superficial and formalistic, such supervision cannot serve as
an effective deterrent against potential corruption and conflicts of interest among the
judiciary. Recognising the need for a proper balance between judicial independence and
141
Section 49 CA.
142
When asked by the GET, the official explained that the average time spent on a review of a single
declaration was one or two minutes maximum.
35
judicial accountability, GRECO recommends that additional measures be put in
place to ensure an effective supervision of economic interests’ declarations filed
by judges pursuant to the Anti-Corruption Act.
Enforcement measures and immunity
137. Judges are subject to disciplinary liability which is regulated by sections 87-98 CA
when they have engaged in a wrongful act consisting in failure to perform or
inappropriate performance of official duties. An indecent act of a judge is also considered
as a disciplinary offence. Penalties include reprimand, fine in the amount of up to one
month’s salary, a reduction in salary by not more than 30% and removal from office. The
period of limitation is one year from the commission of the offence and six months from
the discovery thereof.
138. The right to initiate disciplinary proceedings is vested with the Supreme Court
Chief Justice and the Chancellor of Justice, in respect of all judges; a circuit court
president, in respect of all first instance court judges within his/her territorial jurisdiction;
a president of court, in respect of judges in the same court; and the Supreme Court en
banc, as regards the Supreme Court Chief Justice.
139. Cases are heard by the Supreme Court’s Disciplinary Chamber which is composed
of five judges representing, respectively, the Supreme Court, the circuit courts and the
first instance courts. The Supreme Court en banc appoints, for the term of three years,
the Chamber’s President and its other members who are the Supreme Court justices. The
remaining judges are elected by the Court en banc. To adjudicate on a disciplinary
matter, the President forms a five-member panel consisting of three Supreme Court
justices, one circuit court judge and one first instance court judge. The decisions are
taken by the majority of votes. Within 30 days of the pronouncement of a decision, it
may be appealed to the Supreme Court en banc. A criminal or misdemeanour
punishment imposed in respect of the same act does not preclude the imposition of a
disciplinary sanction.
140. During the hearing or before the commencement of disciplinary proceedings, in
cases where significant damage has been made to a court’s reputation, the Disciplinary
Chamber may temporarily remove a judge from service. Within ten days from becoming
aware of the ruling, the judge may file an appeal to the Supreme Court en banc.
141. The disciplinary sanction is entered into a judge’s service record, and, in case the
judge does not commit a new disciplinary offence, it expires within one year following
entry into force. A disciplinary punishment may be cancelled by the Disciplinary Chamber
before the prescribed time.
142. Additionally, the authorities submit that the following misdemeanours and criminal
offences apply to situations of conflicts of interest:
- a violation of the rules on the obligation to submit an economic interests
declaration which is punishable under section 26.1 (2) ACA;
- submission of false information to a person, agency or committee verifying
declarations of economic interests which is punishable under section 26.2 ACA;
- a violation of restrictions on employment or activities or procedural restrictions
established by law which is punishable under section 26.3 ACA
- failure to notify a corruption act and punishable under section 26.4 ACA;
- a corruption act entailing the receipt of income or gains derived from corrupt or
illegal practices which is punishable under section 26.5 ACA;
- a knowing violation to a large extent of a procedural restriction established by
the ACA which is punishable under section 300.1 PC.143
143
Punishable by a fine or an imprisonment of up to one year.
36
143. During their term in office, a special criminal procedure applies to judges.144 Thus,
criminal charges may only be brought against first and second instance judges when it
has been proposed by the Supreme Court and with the consent of the President of the
Republic, and against justices and the Chief Justice of the Supreme Court – when it has
been proposed by the Chancellor of Justice, with the consent of majority of Parliament.
Furthermore, it is only following a request by the Chief Public Prosecutor, with the
consent of the Chancellor of Justice that the Chief Justice and justices of the Supreme
Court may be detained as suspects, and that preventive measures and search and
seizure of property may be applied in their regard. 145 In respect of other judges, similar
measures may be taken at the request of the Chief Public Prosecutor, with the consent of
the President of the Republic. In cases where a judge is apprehended in flagrante delicto,
consent of the aforementioned persons is not required.
144. A resolution granting consent to the pressing of criminal charges issued by
Parliament or by the President of the Republic automatically suspends the performance of
a judge’s duties, until the entry into force of a respective court judgment. Following
receipt of the consent, criminal proceedings are conducted pursuant to the general
rules.146
145. As concerns lay judges, during their term of office, criminal charges may only be
brought against them with the consent of the respective county court president.147
146. Misdemeanour proceedings are carried out by the Police and Boarder Guard
Board, who are subordinated to the Ministry of the Interior, and under special
circumstances, by the courts. The proceedings are governed by the Code of
Misdemeanour Procedure. A case may be initiated on the basis of an application or based
on the information gathered by the institution.
147. The following statistics are available on the proceedings instituted against judges.
Between 2007 and 2012, five judges were convicted of bribery and gratuity offences. In
2008, four disciplinary proceedings were initiated for professional inadequacy (against
one judge the proceedings were initiated on two occasions). In three cases, judges were
found guilty. In one case proceedings were terminated due to the judge’s resignation
from office. Sanctions imposed consisted of two reprimands and one fine. 148 In 2010, the
total number of disciplinary proceedings was five (one breach of professional ethics and
four cases of professional inadequacy). 149 As a result, one judge was acquitted and two
penalties involving a reduction in salary and a reprimand, respectively, were imposed. In
two other cases the proceedings had to be terminated after the judges concerned had
resigned from office.150 The authorities indicate that, between 2009 and 2011, there were
no violations of rules pertaining to the declarations of economic interests submitted by
judges.
148. It is noteworthy that, in less than a decade five Estonian judges representing
every first instance court, with one exception, were convicted of bribery and gratuity
offences and had to serve prison terms. Furthermore, several more judges had resigned
after disciplinary proceedings were instituted against them for professional inadequacy
and breach of judicial ethics. Given the size of the judicial community in Estonia, those
numbers appear to be significant and could well be perceived as a source of concern.
144
Article 153 of the Constitution and section 3 (3-4) CA.
145
Section 377 of the Criminal Procedure Code.
146
Section 381 (3-4) of the Criminal Procedure Code.
147
Section 111 (4) CA.
148
European Judicial Systems. Edition 2010 (data 2008). European Commission for the Efficiency of Justice,
Council of Europe Publishing, pp. 223 and 226.
149
European Judicial Systems. Edition 2012 (data 2010). Efficiency and quality of justice. European Commission
for the Efficiency of Justice.
150
European Judicial Systems. Edition 2012 (data 2010). Efficiency and quality of justice. European Commission
for the Efficiency of Justice.
37
Training and awareness
149. According to section 74 CA, a judge is required to develop, on a regular basis,
knowledge and skills of his/her speciality and participate in training courses. The Training
Council, established pursuant to section 44 CA, is responsible for the judges’ training. It
is composed of two representatives, respectively, of the first instance courts, the circuit
courts and the Supreme Court, and of one representative, respectively, of the
Prosecutor’s Office, the Ministry of Justice and the University of Tartu. The Council is
supported by the Judicial Training Department under the Supreme Court, which
ascertains the judges’ training needs, prepares annual training and examination
programmes, analyses their results, and develops methodological materials and studies.
Taking into account the needs and the state budget, by 1 October of each year, the
Council approves an annual training programme, which is implemented by the Judicial
Training Department and financed from the Court’s budget. In 2010, the Council adopted
the Judicial Training Strategy for 2012-2015, focusing in particular, on the implications of
the European Convention on Human Rights, the case law of the European Court of
Human Right and the EU law.151 The authorities indicate that training courses are
available to all judges. These focus, inter alia, on the judicial ethics. Advice as regards
the expected conduct, may be obtained by judges from the presidents of courts, as well
as from the Ministry of Justice.
150. Pursuant to various laws, including the CA, the Public Information Act, as well as
the procedural acts, information on the judiciary is widely available to the public. The
rules and the conduct expected of judges are communicated in a number of ways. For
example, the laws and court judgments are placed on the Internet sites, 152 statistical
information on the disciplinary penalties may be requested from the Supreme Court, the
Disciplinary Chamber’s decisions are available on the Supreme Court’s website for a
period of one year since their entry into force, and the data entered in the Punishments
Register is available to the public, with exceptions provided for by law. Courts are also
obliged to keep an “electronic file” of a court case in the Courts Information System, and
every citizen may access his/her court case file, receive and impart court documentation
via a public e-File portal.
151. The Judicial Training Department organises an important number of training
courses for both nominee and experienced judges covering a wide range of themes.
Pursuant to the Department’s instruction, a judge is encouraged to spend 10-12 days per
year on his/her in-service training. However, it would appear that courses focusing more
specifically on conflicts of interest and ethical issues do not feature prominently on the
judges’ training agenda. The existing professional development programmes are not
mandatory and structured rather around the fields of law and specialisation of judges,
(i.e. criminal, civil and administrative law). The GET is convinced that it is essential that
all judges be regularly trained on ethical conduct. The GET also notes that, until now no
survey has been made amongst judges in order to get a clear picture of the ethical
dilemmas and conflicts of interest situations encountered in practice and that such a
survey could help inform any future training. GRECO therefore recommends that
dedicated and on-going training programmes be elaborated for judges focusing
on judicial ethics, conflicts of interest (including recusal and withdrawal), rules
concerning gifts, hospitality and other advantages, declarations of interests and
other corruption awareness and prevention measures.
151
European Judicial Systems. Edition 2012 (data 2010). Efficiency and quality of justice. European Commission
for the Efficiency of Justice.
152
The authorities refer to the official online State Gazette’s (“Riigi Teataja”) database, as well as a web site
which contains practical information for lawyers, general information and news: www.kohus.ee.
38
152. Furthermore, many interlocutors pointed to the relatively low level of managerial
skills of superior judges, particularly, presidents of courts and heads of court houses.
Allegedly, this is partly explained by the traditions of the legal education in Estonia,
focusing on the knowledge of law rather than the administrative skills. The GET was
informed that management training for presidents of courts was planned as part of the
2011 training programme for judges and that the state of affairs has somewhat
improved. The GET is persuaded that proper managerial skills are an important
prerequisite for designing and thoroughly implementing an anti-corruption policy in a
court or court house, including an efficient case management, early detection and
resolution of conflicts of interest, providing advice and guidance on ethical dilemmas,
reminding the duties pertaining to declaration of additional employment, economic
interests and other obligations arising from the Anti-Corruption Act. Furthermore, an
internal control and supervision, with due regard being paid to the judges’ independence,
can only produce results and supplement external supervision (disciplinary proceedings)
when exercised by well-trained court/court house managers. In light of the foregoing,
GRECO encourages the Estonian authorities to take further measures in order to
strengthen managerial skills of presidents of courts and heads of court houses.
39
V. CORRUPTION PREVENTION IN RESPECT OF PROSECUTORS
Overview of the prosecution service
153. The tasks, functions and operation principles of the Prosecutorial Service, as well
as the duties, rights and guarantees applicable to prosecutors are defined in the
Prosecutorial Service’ Act of 22 April 1998 (PSA). According to this law, the Prosecutorial
Service is a government agency within the Ministry of Justice which participates in the
planning of surveillance necessary to combat and detect crime, directs pre-trial criminal
procedure and ensures the legality and efficiency thereof, represents public prosecution
in court, and performs other duties assigned to it by the law.153
154. The Prosecutorial Service is a hierarchically organised structure, headed by the
Prosecutor General.154 It consists of two levels: 1) the Prosecutor General’s Office, which
is a superior structure; and 2) the four subordinate district prosecutor’s offices (Northern,
Southern, Western and Viru). The Prosecutor General’s Office comprises the departments
of Prosecution, Supervision and Administration. In addition to the Prosecutor General, it
is composed of two leading public prosecutors, fourteen public prosecutors and nine
assistant prosecutors. The district prosecutor’s offices are headed by the chief
prosecutors and comprise specialised prosecutors (two, respectively, in the Northern and
Viru districts, and one, respectively, in the Western and Southern districts), senior
prosecutors, district prosecutors and assistant prosecutors. The total number of
prosecutors in Estonia is 199. Out of these, 18 posts currently remain vacant.
155. Guarantees of independence are contained in the PSA and in the Criminal
Procedure Code (CPC). In accordance with the PSA, in implementing its functions, the
Prosecutorial Service is independent and is to act pursuant to the law. 155 Individual
prosecutors are also independent and are to perform their duties according to the law
and their conscience.156 The above provisions are reiterated by the CPC, which stipulates
that in criminal proceedings, the authority of the Prosecutorial Service is exercised
independently by a prosecutor who is governed solely by the law.157 The Prosecutorial
Service is supervised by the Ministry of Justice; the latter’s authority, however does not
extend to pre-trial criminal proceedings, public prosecution in court and planning of
surveillance.158
156. Annual reports on the performance of duties are presented by the Prosecutorial
Service to the Parliament’s Constitutional Committee. Moreover, ad hoc reports may be
submitted on issues which are uncovered as the result of the Service’s activities and
which have significant effect or require an action. A consolidated activity report is
presented to the Minister of Justice on an annual basis.
157. As concerns the independence of the Prosecutorial Service, the GET recalls
Recommendation Rec(2000)19 of the Committee of Ministers on the role of public
prosecutors in the criminal justice system, which allows for a plurality of models,
including the subordination of the prosecution service to the executive branch. From that
perspective, the degree of autonomy of the Prosecutorial Service in Estonia appears to be
satisfactory. The nature and scope of powers of the Prosecutorial Service are clearly
established by law. Also, while the Ministry of Justice exercises supervisory control, it
does not extend to the specific planning of an individual pre-trial criminal proceeding and
is mainly limited to issuing general criminal policy guidelines.
153
Section 1(1) PSA.
154
Section 3(1) PSA.
155
Section 1.1 PSA.
156
Section 2(2) PSA.
157
Section 30(2) of the Criminal Procedure Code.
158
Section 9(1) PSA.
40
Consultative and decision-making bodies
158. Consultative and decision-making bodies include the Prosecutors’ Assembly, the
Prosecutors’ Competition and Evaluation Committee and the Prosecutors’ Disciplinary
Committee. The Prosecutors’ Assembly is a meeting of all Estonian prosecutors, which is
convened at least once a year and directed by the Prosecutor General. Amongst others,
the Assembly elects two members of the Prosecutors’ Competition and Evaluation
Committee, two members of the Prosecutor’s Disciplinary Committee, hears reports by
the Minister of Justice and the Prosecutor General, examines issues relevant to the
prosecutor’s offices and the prosecution service as a whole.159
159. The Prosecutors’ Competition and Evaluation Committee160 is in charge of
assessing persons applying for the posts of prosecutors filled in by way of a public
competition. The Committee is composed of the Prosecutor General (who acts as its
president), one prosecutor from the Prosecutor General’s Office, two prosecutors from
the district prosecutor’s offices, one judge elected by the Court en banc, a jurist
designated by the University of Tartu Law Faculty and an official designated by the
Minister of Justice. The term of authority of the Committee’s members (except for the
Prosecutor General and the Ministry of Justice’s official) is three years. The Committee
has a quorum if at least five of its members, including the president, are present.
160. The Prosecutors’ Disciplinary Committee is entrusted with hearing disciplinary
cases against prosecutors (see further below).
Recruitment, career and conditions of service
Recruitment requirements
161. The requirements for candidate prosecutors are laid down in section 15 PSA.
Assistant prosecutors, district prosecutors and specialised prosecutors are appointed on
the basis of a public competition announced by the Prosecutor General in the Official
Journal. In order to be appointed as an assistant prosecutor, applicants must be an
Estonian national with full legal capacity who has attained at least 21 years of age, with a
university degree, proficient in the Estonian language, of a high moral character, with
relevant abilities and personal characteristics. Appointed as a district prosecutor may be
a person who has been employed, for one year, as a prosecutor, judge, police officer,
sworn advocate or, for three years, as their senior clerk, or in any other position
requiring in-depth knowledge of penal law and procedure. Appointed as a specialised
prosecutor may be a person already employed as a prosecutor, except an assistant
prosecutor.
162. Access to the profession is denied for persons convicted of a criminal offence,
released from the public service for a disciplinary offence, expelled from the Bar
Association or from the profession of a notary, closely related by blood/marriage to the
superior prosecutor, and those unable to perform prosecutor’s duties due to health
problems.
163. Applicants for the prosecutor’s post submit to the Prosecutors’ Competition and
Evaluation Committee a duly filled in form together with an economic interests’
declaration, which should be valid as of the first day of the month preceding application.
To verify information included in the form, the Prosecutor General and designated
officials from the Prosecutor General’s Office may contact local government agencies,
legal and natural persons and conduct interviews with the applicant concerned. 161
159
Section 13 PSA.
160
Section 43 PSA.
161
Section 15.1 PSA. The applicant must be promptly informed of the inquiries made in his/her regard and to
be presented with materials gathered during the verification process.
41
Suitability of applicants is assessed on the basis of requirements and methods developed
by the Ministry of Justice, including by way of examination.162
164. The Prosecutor General, leading public prosecutors,163 public prosecutors, chief
prosecutors and senior prosecutors may be appointed without a competition.164
Appointed as a Prosecutor General may be a person who is an experienced and
recognised lawyer; as a leading public prosecutor or a public prosecutor – a person with
over two years of experience in a position requiring a university law degree; and as a
chief prosecutor or a senior prosecutor – a person who has worked as a judge,
prosecutor, police officer, sworn advocate or his/her senior clerk for three years before
the appointment.165
Appointment procedure and promotion to a higher rank
165. All prosecutors, with the exception of the Prosecutor General and the chief
prosecutors, are appointed to office for an unspecified term. The Prosecutor General and
chief prosecutors are appointed for a renewable five-year term.166 The Prosecutor
General is appointed by the Government on the basis of a proposal made by the Minister
of Justice, after considering the opinion of the Parliament’s Legal Affairs Committee.
Leading public prosecutors, public prosecutors and chief prosecutors are appointed by the
Minister of Justice on proposal by the Prosecutor General. Senior prosecutors are
appointed by the Prosecutor General on proposal by the leading prosecutors. Specialised
prosecutors and district prosecutors are appointed by the Prosecutor General on
recommendation by the Prosecutors’ Competition and Evaluation Committee. A person
may be appointed as the Prosecutor General or a chief prosecutor in case s/he gives a
written consent thereto. A negative decision on the appointment needs to be justified. 167
The process and the results of an appointment procedure may be contested in the
administrative court. As the promotion of prosecutors is not prescribed by law, the
above-mentioned procedure applies.
166. The GET notes that the selection and appointment of the three (lower) categories
of prosecutors is carried out via an open competition and decided upon by the Committee
composed predominantly of members of the profession. The assessment and choice of
candidates appears to be based on uniform and transparent criteria developed by the
Ministry of Justice. As concerns the appointment of other (higher) categories of
prosecutors, it may be conducted without a competition. As regards the promotion of
prosecutors to the next rank, as in the case of judges, the GET has misgivings that such
decisions– particularly in the absence of a competition – may not have as their basis
objective criteria. GRECO therefore recommends that objective and transparent
criteria be introduced for the promotion of prosecutors with the aim of
enhancing its uniformity, predictability and transparency. As in respect of judges,
such criteria could also be used in the possible appeal proceedings. Furthermore, the
objective criteria could potentially involve results of periodical quality assessments of
prosecutors’ performance, should such a system be introduced by Estonia as suggested
in paragraph 167 below.
162
Sections 44 Section and 18(1-2) PSA.
163
Leading public prosecutors are heads of departments within the Prosecutor General’s Office and may, inter
alia, give orders to district prosecutor’s offices – see section 4.1(1) PSA.
164
Section 18 (3) PSA.
165
For the latter, the clerkship period or probation period as an assistant prosecutor are not to be included in
the period of employment as prosecutor. Section 15(5,6,8) PSA.
166
Section 17(1-2) PSA.
167
Section 16 PSA.
42
Evaluation of a prosecutor’s performance
167. The Prosecutor General exercises supervisory control over the Prosecutor
General’s Office, while the chief prosecutors perform the same function vis-à-vis
respective district prosecutor’s offices.168 During the visit, the GET was informed that a
prosecutor’s work is evaluated by his/her superior by means of informal interviews,
which take into account relevant monthly and annual statistics and which serve, amongst
others, as a basis for distributing bonuses. In the opinion of the GET, the existing
practice may not be qualified as a genuine quality assessment due to the absence of
quality performance criteria established for individual prosecutors and the prosecution
service as a whole. The added value of the periodical performance reviews was already
explained by the GET in the paragraph dedicated to judges. In the similar vein, the GET
is convinced that the establishment of formal quality assessment reviews within the
Prosecutorial Service would not only allow for the proper monitoring and evaluation of a
prosecutor’s performance, but also contribute to creating a more objective and
transparent promotion process, free from any possible undue influence. Consequently,
GRECO recommends that the authorities of Estonia consider introducing a
system of periodical quality assessments of the prosecutors’ performance,
based on standardised and objective criteria, with due regard being paid to the
prosecutors’ autonomy.
Transfer of a prosecutor
168. A specialised or a district prosecutor, upon his/her consent, may be transferred to
the same position in another office by the Prosecutor General. On the basis of his/her
written application and without public competition, a chief prosecutor, a public prosecutor
or a leading public prosecutor may be transferred to a position of a lower prosecutor by
the Minister of Justice. The same procedure may be applied by the Prosecutor General in
respect of a specialised prosecutor or a district prosecutor. 169 With their consent,
prosecutors may furthermore be delegated to the Prosecutor General’s Office or the
Ministry of Justice, employed by international organisations, international civil missions,
institutions of applied higher education for public defence. 170 The transfer may be
contested in the same way as the appointments described above.
Termination of service and dismissal from office
169. A prosecutor is to be dismissed from his/her position in the following cases: upon
his/her request; following the attainment of 65 years of age; if s/he is declared bankrupt;
for a disciplinary offence; following the expiration of term of office as a Prosecutor
General or a chief prosecutor.171 The Prosecutor General or a chief prosecutor whose
term of office has expired may be appointed as a public prosecutor, a specialised
prosecutor or a district prosecutor without public competition by the Ministry of Justice.
In the case of a lack of consent to be appointed to one of the aforementioned posts or
the absence of vacant posts, the Prosecutor General or chief prosecutors are to be
released from service.172 A dismissal/release may be challenged in the same way as
provided above.
Salaries and benefits
170. Salaries and benefits of prosecutors are governed by section 22 PSA, as well as by
Government’s and Ministry of Justice’s regulations and directives. The salary of a
prosecutor is to be determined for at least one year and fall within one of the eight salary
168
Section 9 (2) PSA.
169
Section 16.1 PSA.
170
Sections 52, 52.1 and 52.2 PSA.
171
Sections 45,47, 48-50 PSA.
172
Section 50 PSA.
43
grades.173 The minimum monthly salary of a district prosecutor (grade 2) is currently
2 025 Euros, and that of a Prosecutor General (grade 8) is 3 300 Euros. Additional
remuneration may be provided for the performance of extra duties and effective work by
the Prosecutor General, and for the Prosecutor General him/herself – by the Minister of
Justice. For prosecutors transferred/appointed to the Viru district office, an additional
remuneration of up to 1 000 Euros per month may be approved for a period of up to four
years.
171. Prosecutors are entitled to an old-age pension (as a main rule, following at least
twenty-five years of service) and an incapacity pension. Allowances are also granted in
case of property damage or an attack against a prosecutor resulting in the health
damage, incapacity or death.174
172. Prosecutors are awarded bonuses in the amount of up to 20% of their salaries
twice per year. The allocation of bonuses depends, to a large extent, on the outcome of
informal interviews held between prosecutors and their superiors and take into account
monthly and annual statistics. In the course of the visit, contradictory information was
received. Some interlocutors stated that a written justification of the bonus allocation to
a particular prosecutor was unnecessary. The GET is firmly convinced that the existing
bonus system, not based on transparent and objective criteria, renders prosecutors
vulnerable to possible undue influence. Bearing in mind the specificities of the
prosecutors’ work, particularly, that different categories of prosecutors may be entrusted
with different sets of tasks, the GET has doubts as regards the feasibility of designing a
fair bonus system within the prosecutorial service. In view of the foregoing, GRECO
encourages the authorities to ensure that the remuneration of prosecutors be based on
transparent and objective criteria.
Case management and procedure
173. Pursuant to section 8 PSA, it is the Prosecutor General who determines the
division of duties within the Prosecutor General’s Office, following consultation with
subordinate prosecutors. In the district prosecutor’s offices, the division of tasks is
agreed upon in the same manner by the chief prosecutor. Duties are divided according to
the type of criminal offence, offender or other general criteria, and prescribe a
substitution procedure. Once approved, the plan may be amended only with good reason.
174. As concerns the handling of individual cases, a prosecutor supervising a
subordinate colleague may demand explanations and information from him/her. 175 In
criminal proceedings, a higher ranking prosecutor may, by his/her written order, revoke
an unlawful or unjustified ruling, order or demand made by his/her subordinate. Also, the
opinion of a higher ranking prosecutor on the interpretation of a provision of law and its
implementation, declared in a ruling, is mandatory for a subordinate prosecutor in the
proceedings concerned.176 The Prosecutor General or a chief prosecutor furthermore may
substitute, with good reason, a subordinate prosecutor or assign his/her tasks to another
prosecutor, not subordinate to him/her.177 A substitution order is provided in writing,
setting out the extent of the substitution and its justification.
175. Criminal proceedings may be terminated in case both pre-trial and court
proceedings have exceeded the reasonable time requirement. In such instances,
disciplinary proceedings may be initiated against the prosecutor concerned. Additional
safeguards against undue delay are contained in the Criminal Procedure Code (CPC),
173
Differentiated salary rates may be established within the salary grades – See section 22 (3.1) PSA.
174
Sections 24 and 26 PSA.
175
Section 9(3) PSA.
176
Section 213(6) of the Criminal Procedure Code.
177
Section 10 PSA.
44
which restricts the possibility of keeping a suspect or an accused under arrest for more
than six months. The period of limitation also applies.
176. The GET is satisfied that the internal transparency of the Prosecutorial Service
appears to be adequate and guaranteed by the appropriate provisions of the PSA and of
the CPC. Prosecutors enjoy sufficient independence while making decisions. Each
revocation by a superior prosecutor of a decision made by his/her subordinate is to be
provided in writing and to be duly motivated. Prosecutors may be held accountable for
their decisions, and the appropriate oversight of their conduct is statutorily based.
Ethical principles and rules of conduct
177. Ethical rules are contained in the Ethics Code of the Prosecutorial Service (ECPS),
adopted by the Prosecutors’ Assembly on 23 December 2003. The Code consists of five
chapters, amongst them a chapter on the general rules of behaviour, a chapter on pre-
trial and judicial proceedings (composed of two sub-headings entitled “Honour and
dignity” and “Independence”) and a chapter on relations with colleagues and the public
(containing three sub-headings “Communication”, “Membership” and “Actions”). Pursuant
to section 7 (2) ECPS, in case of doubt of the conduct to be pursued, a prosecutor is to
turn for advice to his/her direct superior or a senior colleague. Interpretation of the Code
lies with the Prosecutors’ Disciplinary Committee, which is also using it as a basis for
evaluating prosecutors’ behaviour in the course of disciplinary proceedings. According to
the authorities, non-compliance with the ECPS may trigger disciplinary proceedings
against the prosecutor concerned. The GET has, moreover, learnt that it has become a
tradition for the Prosecutor General to hold induction meetings with the newly appointed
colleagues. A meeting has the duration of an hour and touches upon, amongst other
issues, the ethical conduct of prosecutors.
178. Except for the abovementioned section 2 (2) PSA, which safeguards prosecutors’
individual independence, the PSA does not contain any other provisions dealing with the
prosecutors’ ethical values. As concerns the ECPS, it represents a short statement of
general principles which fails to take sufficient account of corruption risks, including
conflicts of interests and acceptance of gifts, hospitality and other advantages. In this
connection, the GET would like to cite the findings of regular national surveys “Roles and
attitudes in the public service” conducted by the Government Office at regular intervals.
These indicate in particular, that while officials in Estonia are generally aware of ethics-
related requirements, they tend to resolve ethically challenging situations intuitively
rather than on the basis of existing Codes of Ethics or a consistent analysis. Also, the
surveys indicate that it may be challenging for officials to manage ethical role conflicts
and they are not aware of or able to use a Code of Ethics.178 The GET furthermore notes
that no authority has been specifically designated to monitor compliance of prosecutors
with the ethical principles governing their profession and, more concretely, with the
Ethics Code of the Prosecutorial Service. As concerns the Prosecutors’ Disciplinary
Committee, it has only been vested with the right to interpret the Code’s provisions and
to use it as a basis for evaluating prosecutors’ behaviour in the course of disciplinary
proceedings. Lastly, despite the existence of the Code of Ethics and a possibility to bring
prosecutors guilty of misconduct to disciplinarily liability, a more comprehensive
corruption prevention policy within the Prosecutorial Service remains to be elaborated
and duly implemented. In view of the foregoing, GRECO recommends that (i) the
Ethics Code of the Prosecutorial Service be complemented in such a way as to
offer guidance by way of explanatory comments and/or practical examples,
particularly with regard to conflicts of interest and related areas; and (ii) a
deliberate policy for preventing and managing conflicts of interest and
corruption risks within the Prosecutorial Service be developed and a system to
178
Anti-corruption Strategy 2008-2012, Tallinn 2008, p. 27.
45
ensure compliance by prosecutors with the aforementioned policy, including the
Code of Ethics of the Prosecutorial Service, be put in place.
Conflicts of interest
179. The legal framework for the prevention and resolution of conflicts of interest of
prosecutors is provided for by relevant provisions of (1) the Criminal Procedure Code, as
regards disqualification of prosecutors from isolated cases; (2) the Prosecutorial Service
Act, which contains, inter alia, rules on accessory activities of prosecutors; (3) the Anti-
Corruption Act, since prosecutors, alongside judges, are deemed to be officials in the
meaning of the Act (see paragraphs 122-123 above); and (4) the Ethics Code of the
Prosecutorial Service. The latter stipulates in particular, that a prosecutor is to avoid
conflicts of interest in his/her work resulting from family, social and other matters. 179
Prohibition or restriction of certain activities
Incompatibilities and accessory activities
180. A prosecutor may not undertake additional employment, except for that of
teaching or research.180 Moreover, a prosecutor may not be a founder, managing partner,
member of the management board or supervisory board of a commercial undertaking,
director of a branch of a foreign commercial undertaking, or a member of a political
party. If additional employment is sought, this must be declared to the prosecutor’s
superior. Violations of the aforementioned requirements are subject to disciplinary
liability.
181. Furthermore, in accordance with the aforementioned section 26.3 ACA,
misdemeanour liability applies to prosecutors, as officials, for violation of the restrictions
on additional employment and activities, and of procedural restrictions established by the
ACA. It entails a fine of up to 300 fine units (approx. 1 200 Euros).
Recusal and routine withdrawal
182. The legal basis for the removal of a prosecutor from a criminal proceeding is
provided for in section 49, sub-paragraphs 1 and 6 of the Criminal Procedure Code and is
identical to that applicable in respect of judges. The fact that a prosecutor has previously
participated in the same proceeding in his/her status as prosecutor, does not constitute a
basis for his/her removal.181 In instances where a prosecutor fails to remove him/herself
from a case, his/her participation in the proceeding may be challenged by a suspect,
accused, victim, civil defendant, third person or counsel.182 The authorities stress that the
CPC covers all possible situations for the prosecutors to withdraw from criminal
proceedings in cases of potential conflicts of interest. They also indicate that, in 2012,
three complaints have been submitted by parties requiring the removal of prosecutors
from the specific proceedings.
Gifts
183. There are no detailed rules on the acceptance of gifts specifically by prosecutors.
As in the case of judges, the authorities refer to section 26 ACA, which prohibits the
solicitation and acceptance of gifts and benefits by an official and his/her close relatives,
if this may undermine, directly or indirectly, the impartial performance of the official’s
duties. The GET wishes to stress that, in comparison with the Code of Ethics of the
Estonian Judges, which incorporates an explicit ban on the acceptance of presents and
179
Section 4(2) ECPS.
180
Section 30 PSA.
181
Section 52 of the Criminal Procedure Code.
182
Ibid., section 53.
46
favours in any form by a judge, his/her family members and persons under the judge’s
discretion, power or influence, the Ethics Code of the Prosecutorial Service does not
include such a prohibition or any reference to gifts. Furthermore, no guidelines have been
developed within the Prosecutorial Service as regards the standards for handling courtesy
gifts (e.g. by setting up a minimum value threshold), or the reporting procedure. The
GET recalls that, according to the national surveys referred to above, gifts remain one of
the most common forms of corruption in Estonia.183 GRECO, therefore, recommends
that guidelines be developed within the Prosecutor’s Office to clarify the
standards for acceptable courtesy gifts and the procedure for their reporting.
Post-employment restrictions
184. There are no regulations that would prohibit prosecutors from being employed in
certain posts/functions or engaging in other paid or non-paid activities, following their
resignation from office. The GET reiterates the concern it has expressed as regards the
lack of regulation in respect of judges, namely that the prosecutors – as well as judges –
may be exposed to conflicts of interest in view of potential future outside employment
opportunities or may accept outside employment, subsequent to taking an improper
advantage of their office. The GET therefore encourages the authorities to reflect on the
necessity of introducing adequate post-employment restrictions in respect of prosecutors.
Third party contacts, confidential information
185. As concerns the communication between a prosecutor and a third party on a
specific case outside the official procedure, as in respect of judges, the authorities refer
to sections 5 and 6 ACA, prohibiting the relationships involving risks of corruption and
the income derived from corrupt practices. As regards the disclosure of confidential
information, in addition to the aforementioned provisions of the Penal Code (see
paragraph 131 above), regulation is also provided by the Prosecutorial Service Act, which
imposes an obligation of professional secrecy on prosecutors, 184 and the Ethics Code of
the Prosecutorial Service. The breach of confidentiality rules entails penal or disciplinary
liability.
Declaration of assets, income, liabilities and interests
186. Prosecutors are deemed to be officials for the purposes of the ACA, and are to
submit declarations of economic interests in accordance with the procedure also
prescribed for judges and members of Parliament. The Prosecutor General, leading public
prosecutors and chief prosecutors file their declarations with the Parliament’s ACA Select
Committee, whereas prosecutors of other categories present their declarations to the
Prosecutor General’s Office. Declarations submitted by the Prosecutor General are
published in the on-line State Gazette, except for personal details and information on the
income, including taxable and dividend income. Declarations of other categories of
prosecutors are confidential.
187. The rules on declarations are enforced either in the course of misdemeanour or
disciplinary proceedings. Failure to submit declarations not subject to disclosure, on time
without good reason, or the knowing submission of incomplete or false information is
punishable by a fine of up to 200 fine units (800 Euros). 185 In respect of declarations
subject to public disclosure (i.e. that submitted by the Prosecutor General), the fine
imposed is up to 300 fine units (1 200 Euros).186 Additionally, in case of failure by the
Prosecutor General to submit his/her declaration on time, within one month after the
offence has become known, a notice is published in the Official Gazette. The depositary
183
Summary of the study “Corruption in Estonia: Study of three target groups in 2010”.
184
Section 28 PSA.
185
Section 26.1 (1) ACA.
186
Section 26.1(2) ACA.
47
of declarations may also propose the launching of disciplinary proceedings against the
prosecutor concerned.
188. The GET notes that the revised ACA does not include an explicit obligation for
prosecutors to disclose their interests. Thus, section 13 (9) of the new law stipulates
that, in so far as officials of government agencies are concerned, it is up to the agency’s
head to establish such an obligation in respect of his/her officials. 187 During the on-site
visit the GET was reassured that, pursuant to the Prosecutor General’s order, all
prosecutors will be subject to interests’ disclosure and that, moreover, declarations of all
categories of prosecutors will become public. Nonetheless, the GET is concerned that the
desired uniformity in the application of the new law could be undermined by discretionary
decisions within the Prosecutorial Service. GRECO, therefore, recommends that
coherent requirements be made applicable to all the categories of prosecutors
as concerns the disclosure of their interests, pursuant to the revised Anti-
Corruption Act.
Supervision
Additional employment and accessory activities
189. As mentioned above, a prosecutor is obliged to notify his/her superior or head of a
prosecutor’s office when taking-up additional employment opportunities. It would appear
that supervision over the compliance by prosecutors with limitations imposed on their
additional employment by the PSA is carried out in an adequate manner.
Declarations of economic interests
190. As indicated above, declarations of economic interests are filed with the
Prosecutor General’s Office, except for declarations of the Prosecutor General, leading
public prosecutors and chief prosecutors, which are submitted to the Parliament’s ACA
Select Committee. The GET recalls its concerns as regards the supervision of declarations
of economic interests of members of Parliament and of the Supreme Court justices.
These apply mutatis mutandis to the supervision of declarations filed with the ACA Select
Committee by the Prosecutor General, leading public prosecutors and chief prosecutors.
As to the supervision of declarations submitted by other categories of prosecutors, only
very formal checks are being made by the Prosecutor General’s Office. Thus, out of all
the declarations presented, only about five are being examined per year, mostly by
checking whether the property listed in the public registers corresponds to the one
described in the declarations. The GET refers to its earlier statements regarding the
inadequacy of such supervision. GRECO recommends therefore that additional
measures be put in place to ensure the effective supervision of economic
interests’ declarations submitted by prosecutors pursuant to the Anti-
Corruption Act.
Enforcement measures and immunity
191. Disciplinary liability has been provided for a disciplinary offence consisting in: (i)
the wrongful non-performance or unsatisfactory performance of duties; or (ii) an
indecent act – a wrongful act which is in conflict with the generally recognised moral
standards or which discredits the prosecutor or the Prosecutorial Service, regardless of
whether committed in the performance of duties or not. 188 Non-compliance with the
Ethics Code of the Prosecutorial Service, according to the authorities, may also trigger
disciplinary liability. Disciplinary penalties are reprimand, fine of up to one month’s
187
By contrast, section 4(2)12 of the currently effective ACA makes a specific reference to “the Prosecutor
General and prosecutors” as those obliged to submit declarations of interests.
188
Section 31 PSA.
48
salary, reduction in salary by up to 25% for a period of up to one year, and dismissal
from service. The period of limitation is six months from the commission of the offence.
192. Disciplinary proceedings are initiated if the elements of a disciplinary offence
become evident, at the request of an interested person or at the initiative of: (1) the
Minister of Justice – against the Prosecutor General, leading public prosecutor or chief
prosecutor; (2) the Prosecutor General – against all categories of prosecutors; and (3) a
chief prosecutor – against prosecutors of district offices subordinate to him/her.189 For
the time of the preliminary process, the authority in charge thereof may suspend a
prosecutor concerned from office.
193. Disciplinary cases are heard by the Prosecutors’ Disciplinary Committee or the
Minister of Justice. The Prosecutors’ Disciplinary Committee is elected for three years and
is composed of two prosecutors from the Prosecutor General’s Office, two prosecutors
from the district prosecutor’s offices and one judge elected by the Court en banc.
Disciplinary proceedings are carried out by the Ministry of Justice pursuant to own
regulations.190
194. Following the hearing, the Disciplinary Committee may propose to the Minister of
Justice or the Prosecutor General to impose or not to impose a penalty on the prosecutor
concerned.191 Disciplinary sanctions are imposed: (i) by the Minister of Justice – in
respect of a prosecutor appointed by the Government of the Republic or the Ministry of
Justice; (2) by the Prosecutor General – in respect of other categories of prosecutors. 192
In the case of a disciplinary decision to release the Prosecutor General from service, the
Minister of Justice makes a proposal to the Government, which is to decide on the
proposal within one month, having considered the opinion of the Parliament’s Legal
Affairs Committee.193 The imposition of a disciplinary penalty may be contested in an
administrative court.194
195. Additionally, the following misdemeanours and criminal offences are relevant to
situations of conflicts of interest of prosecutors: 195
- a violation of the rules on the obligation to submit an economic interests
declaration which is punishable under section 26.1 (2) ACA;
- submission of false information to a person, agency or committee verifying
declarations of economic interests which is punishable under section 26.2 ACA;
- a violation of restrictions on employment or activities or procedural restrictions
established by law which is punishable under section 26.3 ACA
- failure to notify a corruption act which is punishable under section 26.4 ACA;
- a corruption act entailing the receipt of income or gains derived from corrupt or
illegal practices which is punishable under section 26.5 ACA;
- a knowing violation to a large extent of a procedural restriction established by
the ACA which is punishable under section 300.1 PC.196
196. Prosecutors are not subject to special criminal proceedings.
197. As previously mentioned, misdemeanour proceedings are carried out by the Police
and Boarder Guard Board, subordinated to the Ministry of the Interior, and under special
circumstances, by the courts. The proceedings are governed by the Code of
189
Section 32 PSA.
190
Section 36 PSA.
191
Section 40 PSA.
192
The Chief Public Prosecutor may not impose the penalty of dismissal from office on prosecutors appointed to
office by the Ministry of Justice – See Section 42 (1,2) PSA.
193
Section 42 (4) PSA.
194
Section 42(5) PSA.
195
For more details, see also above under “Corruption prevention in respect of members of Parliament”.
196
It is punishable by a fine or imprisonment of up to one year.
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Misdemeanour Procedure, and a case may be initiated on the basis of an application or
information gathered by the institution.
198. According to statistical information provided by the authorities, in 2011 a criminal
proceeding was launched against an assistant prosecutor concerning a bribery offence.
Between 2007 and 2012, five prosecutors were brought to disciplinary responsibility. Out
of these, one prosecutor was subject to a disciplinary sanction, three prosecutors were
pardoned as the breaches in question were not deemed to be serious and one case was
dismissed. None of the cases, however, pertained to conflicts of interest or economic
interests’ declarations.
Training and awareness
199. Pursuant to section 2 (3) of the Ethics Code of the Prosecutorial Service (ECPS), a
prosecutor is to take good care of his/her professional competence, share his/her
professional knowledge and experience with colleagues and, if necessary, participate as a
lecturer in professional events. The authorities indicate that, in the beginning of their
service, assistant prosecutors receive training on the ECPS and on the values of the
prosecutor’s service. Additionally, various trainings are held, including on the issue of the
prosecutor’s service ethics. Advice as regards professional conduct may be sought from
the Prosecutor General’s Office and the Ministry of Justice.
200. As concerns the general awareness of the conduct expected of prosecutors and of
the prosecutors’ compliance with these rules, information is made available in the
following ways: laws and court decisions are placed on the relevant Internet sites; upon
request, decisions of the Prosecutors’ Disciplinary Committee may be obtained from the
Prosecutor General’s Office; the decisions of the Committee are published on the
Prosecutor General’s Office’s Intranet; the data entered in the Punishments Register is
publicly available, except in the cases provided for by law; and the declarations of
economic interests of the Prosecutor General are disclosed in the on-line State Gazette,
albeit in a reduced format.
201. The GET was provided with programmes of sample training events organised for
members of the Prosecutorial Service in 2010 and 2011. Similar deficiencies can be
identified in the area of training and advice on questions pertaining to ethics and conflicts
of interest, as was the case of judges presented above. Thus, the existing training on
ethical issues has not been provided on a regular and continuous basis and does not
address in detail questions pertaining to conflicts of interest, rules governing gifts and
declarations of economic interests. Similarly, it would appear that the training currently
available, is not sufficiently informed by practical experiences and dilemmas faced by
prosecutors in their everyday work, such as surveys conducted amongst prosecutors in
order to gauge ethical challenges and conflicts of interest situations arising in practice. In
view of the foregoing, GRECO recommends that dedicated and on-going training
programmes, supported by relevant materials, for prosecutors be developed
focusing on professional ethics, conflicts of interest (including recusal and
withdrawal), rules concerning gifts, hospitality and other advantages,
declarations of interests and other corruption awareness and prevention
measures.
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VI. RECOMMENDATIONS AND FOLLOW-UP
202. In view of the findings of the present report, GRECO addresses the following
recommendations to Estonia:
Regarding members of Parliament
i. the introduction of rules on how members of Parliament engage with
lobbyists and other third parties who seek to influence the legislative
process (paragraph 30);
ii. that (i) a Code of Conduct for members of Parliament be elaborated;
and (ii) in order for the provisions of the Code to be effectively applied
in practice, an efficient mechanism of supervision and sanction, which
takes into account the specific nature of the parliamentary mandate,
be established (paragraph 38);
iii. that (i) the existing conflicts of interest regulations be made
applicable to members of Parliament and subject to effective
supervision; and (ii) detailed guidelines be developed within
Parliament containing practical examples of conflicts of interest which
are or may be encountered by members of Parliament, including those
arising specifically from pecuniary interests (paragraph 47);
iv. in order to clarify and facilitate the implementation of relevant
provisions of the Anti-Corruption Act, that internal rules and guidance
be provided within Parliament on the acceptance of gifts, hospitality
and other advantages and compliance by parliamentarians with the
aforementioned rules be properly monitored (paragraph 49);
v. that (i) a study be carried out in order to identify post-employment
restrictions for members of Parliament which might be required to
avert conflicts of interests and ii) post-employment restrictions be
regulated, if necessary (paragraph 53);
vi. that the authorities of Estonia take determined measures to ensure a
more in-depth examination of economic interests’ declarations
submitted by members of Parliament pursuant to the Anti-Corruption
Act, amongst others by strengthening operational and administrative
capacities of the Parliament’s Select Committee on the
Implementation of the Anti-Corruption Act (paragraph 65);
vii. (i) the establishment of a specific source of confidential counselling to
provide parliamentarians with advice on ethical questions and possible
conflicts of interest in relation to their legal duties; and (ii) the
provision of regular awareness raising activities for members of
Parliament (all deputies but especially the new ones) covering issues,
such as conflicts of interest, acceptance of gifts, hospitality and other
advantages, outside employment, disclosure of interests and other
obligations related to corruption prevention (paragraph 75);
Regarding judges
viii. that (i) decisions on appointment to the post of first and second
instance court judge be subject to independent appeal procedure; and
(ii) objective criteria for the professional advancement of judges be
51
introduced with the aim of enhancing its uniformity, predictability and
transparency (paragraph 99);
ix. that the Estonian authorities consider introducing a system of
periodical quality assessments of a judge’s professional performance,
based on standardised and objective criteria, with due regard being
paid to the principle of judicial independence (paragraph 101);
x. that (i) a deliberate policy for preventing and managing conflicts of
interest and corruption risks be developed within the judiciary; and
(ii) the system be put in place to ensure compliance by judges with
the aforementioned policy, including the Code of Ethics of the Estonian
judges (paragraph 133);
xi. that additional measures be put in place to ensure an effective
supervision of economic interests’ declarations filed by judges
pursuant to the Anti-Corruption Act (paragraph 136);
xii. that dedicated and on-going training programmes be elaborated for
judges focusing on judicial ethics, conflicts of interest (including
recusal and withdrawal), rules concerning gifts, hospitality and other
advantages, declarations of interests and other corruption awareness
and prevention measures (paragraph 151);
Regarding prosecutors
xiii. that objective and transparent criteria be introduced for the promotion
of prosecutors with the aim of enhancing its uniformity, predictability
and transparency (paragraph 166);
xiv. that the authorities of Estonia consider introducing a system of
periodical quality assessments of the prosecutors’ performance, based
on standardised and objective criteria, with due regard being paid to
the prosecutors’ autonomy (paragraph 167);
xv. that (i) the Ethics Code of the Prosecutorial Service be complemented
in such a way as to offer guidance by way of explanatory comments
and/or practical examples, particularly with regard to conflicts of
interest and related areas; and (ii) a deliberate policy for preventing
and managing conflicts of interest and corruption risks within the
Prosecutorial Service be developed and a system to ensure compliance
by prosecutors with the aforementioned policy, including the Code of
Ethics of the Prosecutorial Service be put in place (paragraph 178);
xvi. that guidelines be developed within the Prosecutor’s Office to clarify
the standards for acceptable courtesy gifts and the procedure for their
reporting (paragraph 183);
xvii. that uniform requirements be made applicable to all the categories of
prosecutors as concerns the disclosure of their interests, pursuant to
the revised Anti-Corruption Act (paragraph 188);
xviii. that additional measures be put in place to ensure the effective
supervision of economic interests’ declarations submitted by
prosecutors pursuant to the Anti-Corruption Act (paragraph 190);
52
xix. that dedicated and on-going training programmes, supported by
relevant materials, for prosecutors be developed focusing on
professional ethics, conflicts of interest (including recusal and
withdrawal), rules concerning gifts, hospitality and other advantages,
declarations of interests and other corruption awareness and
prevention measures (paragraph 201).
203. Pursuant to Rule 30.2 of the Rules of Procedure, GRECO invites the authorities of
Estonia to submit a report on the measures taken to implement the above-mentioned
recommendations by 30 June 2014. These measures will be assessed by GRECO through
its specific compliance procedure.
204. GRECO invites the authorities of Estonia to authorise, at its earliest convenience,
the publication of this report, to translate the report into its national language and to
make the translation publicly available.
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54
About GRECO
The Group of States against Corruption (GRECO) monitors the compliance of its 49 member
states with the Council of Europe’s anti-corruption instruments. GRECO’s monitoring
comprises an “evaluation procedure” which is based on country specific responses to a
questionnaire and on-site visits, and which is followed up by an impact assessment
(“compliance procedure”) which examines the measures taken to implement the
recommendations emanating from the country evaluations. A dynamic process of mutual
evaluation and peer pressure is applied, combining the expertise of practitioners acting as
evaluators and state representatives sitting in plenary.
The work carried out by GRECO has led to the adoption of a considerable number of reports
that contain a wealth of factual information on European anti-corruption policies and
practices. The reports identify achievements and shortcomings in national legislation,
regulations, policies and institutional set-ups, and include recommendations intended to
improve the capacity of states to fight corruption and to promote integrity.
Membership in GRECO is open, on an equal footing, to Council of Europe member states
and non-member states. The evaluation and compliance reports adopted by GRECO, as well
as other information on GRECO, are available at: www.coe.int/greco.
55
Riigi peaprokurör
[email protected]
Meie 15.05.2015 nr 9-2/3722-1
Riigikohtu esimees
[email protected]
Korruptsioonivastaste riikide ühenduse GRECO
aruande edastamine
Euroopa Nõukogu korruptsioonivastane riikide ühendus GRECO andis Eestile 2012. aasta lõpul 19
soovitust seoses parlamendi liikmete, kohtunike ning prokuröride korruptsiooni ennetamisega.
GRECO hindas soovituste täitmist käesoleva aasta märtsis ning 17.04.2015 avaldatud värske raporti
järgi on Eesti täies ulatuses täitnud kümme ja osaliselt üheksa soovitust.
Edastan Teile käesoleva kirjaga aruande teksti ning teavitan, et kohtute osas antud viiest soovitusest
loeti täielikult täidetuks kolm soovitust ning kaks soovitust on täidetud osaliselt. Prokuratuuri osas
tehtud seitsmest soovitusest on täidetud kuus ning osaliselt täideti üks soovitus. Osaliselt täidetud
soovituste edenemise osas peab Eesti andma Euroopa Nõukogule informatsiooni uuesti 30.
septembriks 2016.
GRECO eesmärgiks on hinnata liikmesriikide valmidust võidelda korruptsiooniga ning läbi
hindamisprotseduuri anda riikidele soovitusi korruptsioonivastaseks tegevuseks. Euroopa Nõukogu
on välja töötanud kaks korruptsioonivastast konventsiooni, mis on ka mõõdupuuks riikidele
soovituste tegemisel:
1. Korruptsiooni kriminaalõigusliku reguleerimise konventsioon (Eesti ratifitseeris 06.12.2001);
2. Korruptsiooni tsiviilõiguslike aspektide konventsioon (Eesti ratifitseeris 08.12.2000).
Lugupidamisega
(allkirjastatud digitaalselt)
Kristel Siitam-Nyiri
Kriminaalpoliitika asekantsler
Lisad:
1. Lisa 1, GRECO 4nda vooru soovituste täitmisaruanne, 2015
2. Lisa 2, GRECO 4nda vooru hindamisraport (Korruptsiooni ennetamine parlamendi liikmete,
kohtunike ja prokuröride seas), 2012
Urvo Klopets 620 8178
[email protected]
Tõnismägi 5A / 15191 Tallinn / +372 620 8100 /
[email protected] / www.just.ee
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