Küsimustik

Judicial Independence (2016) Objective The objective of this updated questionnaire is to collect factual information on structural guarantees for judicial independence, which cover certain guarantees for the independence of judges and for the independence of the judiciary. The updated judicial independence questionnaire maintains almost all questions from the 2015 questionnaire and is already prefilled with the replies you have provided. Please feel free to adapt the 2015 replies, if the legislation or practice in your country has changed or if you believe the replies should be clarified. Please highlight any such additional changes red . New or modified questions are highlighted yellow . These mostly concern some clarifications on the appointment of judges, questions regarding systems for evaluation of judges and disciplinary measures regarding judges, questions on the so called revolving door issue, and a simplified question 2. The questionnaire containing replies could later be published . Respondent’s Information Member State -Court Name Function Email Phone Supreme Court of Estonia Liis Lindström Legal Adviser to the Chief Justice Liis.Lindstrom @riigikohus.ee +372 7309022 Additional Information For additional information regarding the questionnaire, please contact Jože ŠTRUS ( [email protected] , +32 229-68992), in the Directorate-General for Justice and Consumers of the European Commission . AUTHORITIES WITH POWER TO DELIVER THE MAIN DECISIONS ON HUMAN AND F INANCIAL RESOURCES IN THE J UDICIARY Which authorities or bodies have the power to deliver the following decisions in the judiciary ? 1.1. Selection, appointment and dismissal of judges and court presidents [Please insert an “x” into the box that corresponds to the situation in your country; several answers possible; insert "N/A" when the situation is not applicable in your country; if relevant, you can additionally insert the following explanations: "FS" (final selection), "CA" (consultative advice – the body can provide its opinion), "MA" (mandatory advice – the body must provide its opinion, the content of which is either binding or not for the deciding authority), "D" (decision). Please insert "OF" (obligation to follow) if the deciding authority has an obligation, either by law or practice, to follow the proposal to appoint or dismiss a judge.] x) decision establishing there is a vacant judicial position proposal of candidates for the appointment as first or second instance judges decision on the appointment of a first or second instance judge proposal for the dismissal of a first or second instance judge decision on the dismissal of a first or second instance judge proposal of candidates for the appointment as court presidents decision on the appointment of a court president proposal for the dismissal of a court president decision on the dismissal of a court president x) a) b) c) d) e) f) g) h) President of a court: Special chamber of a court: Higher court: Supreme Court: FS MA x D Council for the Judiciary : PLEASE NOTE! In Estonia, the Council is only an advisory body to the Minister of Justice, it is chaired by the Chief Justice of the Supreme Court MA MA Judicial inspection body: Disciplinary Chamber of Judges D Other independent body (specify): Judges’ Examination Committee CA Ministry/Minister of justice : D FS D FS D Other ministry than min. of justice (specify): … Parliament: Head of state : President of Estonia on advice of the Supreme Court D D Other (specify) : Security police MA Other (specify): Full Court of a particular court MA MA M A 1.1.1. If any other authority, body or agency is involved in the procedure for appointment of judges, please describe its involvement: § 55. Appointment as judge (1) Judges of a court of the first instance and judges of a court of appeal shall be appointed by the President of the Republic on the proposal of the Supreme Court en banc. The Supreme Court en banc shall first consider the opinion of the full court of the court for which the person runs as a candidate . Candidates of judicial office also need to pass a security check conducted by the Security Police before being appointed as judge as all the Estonian judges have by their profession access to all levels of state secrets. The procedure of conducting background checks is also regulated in the Courts Act: § 54. Assessment of suitability of personal characteristics of candidates for judicial office (1) The suitability of the personal characteristics of a candidate for judicial office shall be assessed on the basis of an interview. The judge’s examination committee may consider also other information concerning the candidate for judicial office which is important for the performance of the duties of a judge, make inquiries and ask for the opinion of the candidate’s supervisor. (2) A candidate for judicial office shall pass a security check before being appointed judge, excluding the case if he or she holds a valid access permit to access state secrets classified as top secret or if the time of becoming a candidate he or she occupies a position which provides the right by virtue of office to access all levels of state secrets. (3) To pass the security check, a candidate for judicial office shall complete the form used to apply for an access permit to state secrets and sign the consent which permits the agency which performs security checks to obtain information concerning the person from natural and legal persons and state and local government agencies and bodies during the performance of the security check, and submit these through the judge’s examination committee to the Security Police Board. (4) The Security Police Board performs the security check of a candidate for judicial office pursuant to the procedure prescribed in the Security Authorities Act. (5) The Security Police Board shall, within three months as of receipt of the documents specified in subsection (3) of this section, present the information gathered as a result of the security check to the judge’s examination committee and shall provide an opinion on whether a person who submitted the application meets the conditions for the issue of a permit for access to state secrets. (6) Relying on the data collected in the course of the security check, a candidate for judicial office may be appointed judge within three years as of the time when the Security Police Board forwarded the information collected in the course of the security check to the judge’s examination committee. A person may be appointed judge later than the above term after passing a new security check. (61) The examination committee may apply for: 1) specification and modification of the information gathered in the course of the security check; 2) verification of existence of individual circumstances specified in § 32 of the State Secrets and Classified Information of Foreign States Act within the term specified in subsection (6) of this section. (62) To specify and modify the information specified in subsection (61) of this section and verify the existence of circumstances specified in § 32 of the State Secrets and Classified Information of Foreign States Act, a candidate for judicial office shall sign the consent specified in subsection (3) of this section. (7) The judge’s examination committee shall forward its decision and the documents specified in subsections (3) and (5) of this section to the Supreme Court en banc and notify the examinee of the decision. § 54-1. Security check of candidate for Chief Justice of Supreme Court 1) A candidate for the Chief Justice of the Supreme Court shall pass a security check before being appointed the Chief Justice of the Supreme Court, excluding the case if he or she holds a valid access permit to access state secrets classified as top secret or if the time of becoming a candidate he or she occupies a position which provides the right by virtue of office to access all levels of state secrets. (2) A person acquires the status of the candidate for the Chief Justice of the Supreme Court after the President of the Republic has proposed to the person to apply for the office and the person agrees to it in writing. (3) The Security Police Board performs the security check of a candidate for the Chief Justice of the Supreme Court pursuant to the procedure prescribed in the Security Authorities Act. (4) In order to pass the security check, the candidate for the Chief Justice of the Supreme Court shall submit a completed form for an applicant for a permit to access state secrets to the Security Police Board through the Office of the President of the Republic, and also written consent which permits the agency which performs security checks to obtain information concerning the person from natural and legal persons and state and local government agencies and bodies during the performance of the security check. (5) The Security Police Board shall, within three months as of receipt of the documents specified in subsection (4) of this section, present the information collected as a result of the security check to the President of the Republic and shall provide an opinion concerning the compliance of the candidate for the Chief Justice of the Supreme Court with the conditions for the issue of a permit for access to state secrets. (6) In the cases where the authority of the Chief Justice of Supreme Court have terminated prematurely, the security check of the candidate for Chief Justice of Supreme Court shall be performed within one month after receipt of the documents specified in subsection (4) of this section. With the permission of the Security Committee of the Government of Republic, the term for performing the security check may be extended by one month if circumstances specified in clause 33 (24) 1) or 2) of the State Secrets and Classified Information of Foreign States Act arise or if it is possible that circumstances specified in clause 30 (21) 3) or 4) of the State Secrets and Classified Information of Foreign States Act may arise within one month. (7) Relying on the data collected in the course of the security check, a candidate for the Chief Justice of the Supreme Court may be appointed to office within nine months as of the time when the agency which performed the security check forwarded the information collected in the course of the security check to President of the Republic. A candidate for the Chief Justice of the Supreme Court may be appointed to office later than the above term after passing a new security check. Conclusive remarks on the procedure of appointment of first and second instance judges : The Minister of Justice announces a public competition in order to fill vacant positions of first and second instance judges (§ 53(2) of the Courts Act). An i nterested person shall submit an application to the Chief Justice of the Supreme Court within one month (§ 53(3) of the Courts Act). Candidates for judicial office of first and second instance courts need to pass personality tests and a background check executed by the Judges Examination Committee and a security check conducted by the Security Police (§ 54 and 54-1 of the Courts Act). Once a person has passed tests , background check and the security check all candidates are interviewed by the Judges Examination Committee in order to assess their personal characteristics. From there on all the materials of the “passed” candidates are submitted to the Supreme Court en banc (to all the 19 justices of the Supreme Court). The Supreme Court en banc makes a proposition to the President of the Republic whom to appoint as judge. Before making the proposition to the President the Supreme Court en banc considers the opinion of the full court of the court for which the person runs as a candidate (opinion of the general assembly of that court). Judges of first and second instance courts are appointed by the President of the Republic. It should also be noted that before applying for a position of a judge all candidates also have to take a judges exam ( passing the judges exam is a precondition for applying for the position of a judge). Explanation about the dismissal of I and II instance judges: According to § 30 (2) p 2 the Supreme Court en banc makes the proposal to the President of the Republic to release a judge from office. The President of the Republic makes the final decision concerning the release of first and second instance judges. Judges can also be removed from office. Judges Disciplinary Committee has the right to impose the disciplinary sanction of removing the judge from office (§ 88 of the Courts Act) . The decisions of the Judges Disciplinary Committee can be appealed the Supreme Court en banc who has the power to refuse amendment or to annul the decision and acquit the judge (§ 97 of the Courts Act) . 1.1.1.1 If one of these bodies is the national security agency (e.g. intelligence department) , what is its level of involvement? [ several answers possible] ☐ For the specific purpose of granting access to classified information, the national security agency performs a verification procedure based on a questionnaire, for the classified information level (specify) [all levels ] , as for any other person seeking access to classified information ☐ Upon an explicit request, the national security agency checks its records, whether the candidate has been referred to in any way ☐ All candidate judges and/or existing judges (specify who) are systematically subjected to a verification procedure by the national security agency ☐ Other (specify): ……… 1.1.2. What is the procedure for selec ting candidates for becoming judges? [ several answers possible] ☒ Recruitment through a specific exam or a competition, which includes a specific exam for becoming a judge ☐ Recruitment through a vacancy notice without a specific exam X Other (specify): Different procedure is in place for judges of the Supreme Court. According to § 52 of the Courts Act : “ A person who is an experienced and recognised lawyer may be appointed as a justice of the Supreme Court (Supreme Court justice). ” This means that in order to become a justice of the Supreme Court there is a public competition but no obligation to pass a specific exam. The procedure of appointing judges of the Supreme Court also differs from that of first and second instance judges as the proposition to appoint a person as a justice of the Supreme Court is made by the Chief Justice of the Supreme Court (once he/she has considered the opinion of the Supreme Court en banc and the opinion of the Council for Administration of Courts). Judges of the Supreme Court are appointed by the Parliament. 1.1.2.1 Does the appointing authority/body have the power, either by law or constitutional practice, to reject the appointment of a candidate judge ? ["Appointing authority/body" is the one, which at the end of the procedure decides on the appointment of a judge , as specified under 1.1 .( b) and 1.1.(f) .] ☐ No, the appointing authority/body has an obligation by law/by constitutional practice (specify which) to follow the proposal to appoint a candidate judge X Yes, the appointing authority/body can decide not to appoint a candidate judge, but cannot choose any other candidate apart from those names submitted by the proposing authority ☐ Yes, the appointing authority/body can decide not to appoint a candidate judge and can choose any other candidate, even if the name was not submitted by the proposing authority ☐ Other (specify): … 1.1.3. If a candidate judge is not appointed, is the appointing authority/body required to provide him/her the reasons (e.g. a reasoned explanation)? ["Appointing authority/body" is the one, which at the end of the procedure decides on the appointment of a judge.] ☐ Yes X No 1.1.4. If a candidate judge is not appointed, can he/she appeal or request a review? X Yes ☐ No 1.1.4.1. If yes, which authority or body decides on such an appeal/review? ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Court responsible for disciplinary measures for judges (e.g. disciplinary senate, civil service court…) ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Administrative court / President of the Administrative Court ☐ Supreme Court / President of the Supreme Court X Constitutional Court / President of the Constitutional Court (which is the Supreme Court) – it should be noted that this has never happened, meaning the provision providing such an opportunity has not been applied in this context. ☐ Other (specify): … 1.1.4.2. What was the total number of appeals or requests for a review by unsuccessful candidate judges in 2015 ? [If only an estimate is available, add "approx. …" or "fewer than …".] All requests for appeal/review: X : 0 / ☐ N/A If possible, specify this number for candidate judges in different areas (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A 1.2. Selection, appointment and dismissal of Supreme Court judges and the President of the Supreme Court [Please insert an “x” into the box that corresponds to the situation in your country; several answers possible; insert "N/A" when the situation is not applicable in your country; if relevant, you can additionally insert the following explanations: "FS" (final selection), "CA" (consultative advice – the body can provide its opinion), "MA" (mandatory advice – the body must provide its opinion, the content of which is either binding or not for the deciding authority), "D" (decision). Please insert "OF" (obligation to follow) if the deciding authority has an obligation, either by law or practice, to follow the proposal to appoint or dismiss a judge.] proposal of candidates for the appointment as Supreme Court judges decision on the appointment of a Supreme Court judge proposal for the dismissal of a Supreme Court judge decision on the dismissal of a Supreme Court judge proposal of the candidate(s) for the appointment of the President of the Supreme Court decision on the appointment of the President of the Supreme Court proposal for the dismissal of the President of the Supreme Court decision on the dismissal of the President of the Supreme Court a ) b ) c ) d ) e ) f ) g ) h ) President of a court: Special chamber of a court: Supreme Court: CA D D Council for the Judiciary: CA Judicial inspection body: Disciplinary Chamber of Judges D D Other independent body (specify): … Ministry/Minister of justice : Other ministry than min. of justice (specify) : … Parliament: D D X D Head of state: if applicable- on advice of … X X Other (specify) : Chief Justice of the Supreme Court after open competition D x 1.2 . 1. If the procedures mentioned above are different for the judges and/or the P resident of the Supreme administrative court or the Council of State, please describe these differences: The procedure is the same as the Estonian Supreme Court is also the Supreme administrative court of Estonia. Explanation of the procedure of dismissal of Supreme Court Judges and the President of the Supreme Court: According to the Courts Act (§ 99 (3)) the Supreme Court judges are released from office by the Parliament on the proposal of the Chief Justice of the Supreme Court. The Chief justice of the Supreme Court is, in general, released from office by the Parliament on the proposal of the President of the Republic. Both, the judges of the Supreme Court as well as the Chief Justice of the Supreme Court can be removed from office with the decision of the disci p l inary committee as well as the decision of the Supreme Court en banc when reviewing the appeal on the decision of the judge s disci p l inary committee. 1.3. What was the total number of all judges that were dismissed in 201 5 (e.g. as a consequence of disciplinary proceedings or criminal conviction; excluding other grounds such as incompatibility, illness, resignation, retirement)? [ if only an estimate is available, add "approx. …" or "fewer than …".] In all courts: x : 0 / ☐ N/A If possible, specify this number for judges in different areas (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A 1.4. Can a judge appeal if he/she is dismissed? x Yes ☐ No 1.4.1. If yes, which authority or body decides on such an appeal? ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Court responsible for disciplinary measures for judges (e.g. disciplinary senate, civil service court…) ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Administrative court / President of the Administrative Court ☐ Supreme Court / President of the Supreme Court ☐ Constitutional Court / President of the Constitutional Court X Other (specify): The Supreme Court en banc (all the 19 justices of the Supreme Court) 1.4.2. What was the total number of appeals against dismissals of judges in 201 5 ? [If only an estimate is available, add "approx. …" or "fewer than …".] In all courts: ☐ : 0 / ☐ N/A If possible, specify this number for judges in different areas (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A 1.5. Evaluation, promotion, disciplinary measures and training of judges [Please insert an “x” into the box that corresponds to the situation in your country; several answers possible; insert "N/A" when the situation is not applicable in your country; if relevant, you can additionally insert the following explanations: "FS" (final selection), "CA" (consultative advice – the body can provide its opinion), "MA" (mandatory advice – the body must provide its opinion, the content of which is either binding or not for the deciding authority), "D" (decision). Please insert "OF" (obligation to follow) if the deciding authority has an obligation, either by law or practice, to follow the opinion given.] decision on the evaluation of a judge evaluation of the performance management of courts decision on the promotion of a judge adoption of ethical standards application of ethical standards proposal for the appointment of a member of the disciplinary body for judges decision on the appointment of a member of the disciplinary body for judges proposal for a disciplinary decision regarding a judge disciplinary decision regarding a judge (all bodies issuing disciplinary decisions) decision on the follow-up to a complaint against the judiciary/a judge decision on the program/content of training for judges a ) b ) c ) d) e) f ) g ) h ) i ) j ) k ) President of a court: for f) all Estonian judges can make proposals x x x x x x Special chamber of a court: Higher court: Supreme Court: x x x x Council for the Judiciary: Judicial inspection body: Disciplinary Chamber of Judges x x Other independent body (specify): Judges’ Examination Committee only for the judges serving their first three years. For k) Judicial Training Council x x Ministry/Minister of justice : only for 1 st and 2 nd instance courts x Other ministry than min. of justice (specify): … Parliament: Chancellor of Justice (Ombudsman) x Other (specify) : Court en banc (General Assembly of all Estonian judges) x x 1.5.1. How are judges in your country evaluated? ☐ There is no system in place for evaluating judges X Evaluation is focussed on the functioning of the courts, within which also certain aspects of individual work of judges is covered, for example (specify): According to § 45(1) of the Courts Act s upervisory control over the administration of justice pursuant to the requirements, over the performance of duties by judges and over the forwarding of the data of the courts information system pursuant to the established procedure shall be exercised by the chairman (president) of the court. The chairman of a court has the right to demand explanations from judges, inspect compliance with the operations procedure and collect other necessary information. The manager of courthouse may, on the order of the chairman of a court of first instance or on his or her own initiative, demand explanations from judges of a courthouse and collect other necessary information to ensure the administration of justice in the court pursuant to the requirements. Chairmen of circuit courts shall also exercise supervisory control over judges of the courts of the first instance. The Court President also has the power to initiate disciplinary proceedings against judges of that court. According to the decree adopted by the Minister of Justice Court Presidents are to closely monitor all cases that have been pending in their court over 2 years. To conclude: there is no regular/institutionalised evaluation procedure in place but the Court President has the power to intervene where necessary (e.g. when cases have been pending for too long, when there is a complaint from the parties etc) . X Individual evaluation of each judge Individual evaluation concerns judges that have been in office for a period shorter than 3 years. In addition to the regular supervision exercised by the Court President young first instance judges also have a mentor during their first year working as a judge. According to § 73(2) of the Courts Act a supervising judge submits once a quarter until the expiry of the term of supervision to the chairman of a court a report regarding the supervised judge, assessing his or her suitability for the office of judge and the development of the proceedings management skills, and, if necessary, provide other information. In addition according to § 100 (2) of the Courts Act once a year, the chairman/president of a court submits his or her opinion and the report specified in subsection 73 (2) of this Act concerning a judge with less than three years length of service employed in the court to the judge’s examination committee. The standard format for submission of opinion shall be established by the judge’s examination committee. According to § 100(1) a person may be released from the office of judge due to unsuitability for office within three years after appointment to office if the judge has been declared unsuitable for office by a decision of the Supreme Court en banc . ☐ Other (specify): …….. 1.5. 1 . 1 If you have a system for evaluating judges, how often are the judges evaluated? x Reg ular eval uation: Applies only to first and second instance judges that have held office for a shorter period than 3 years. First instance judges have a mentor (judge) for the first year working as a judge who submits 4 times a year to the chairman of a court a report concerning the supervised judge. Once a year the chairman (president) of a court submits submits his or her opinion and the report concerning a judge with less than three years length of service employed in the court to the judge’s examination committee (applies to young judges of first and second instance) . Occasional evaluation: ☐ Upon request of a judge ☐ Upon the decision of the evaluating body x When required for a specific reason (e.g. promotion; specify): For example, when a case has been pe nding for longer than two years or when a complaint concerning the actions of a judge has been submitted etc. 1.5.1.2 What are the criteria for evaluating judges? [ several answers possible] ☐ Quantitative appraisal of judge's work (e.g. based on statistical analysis) ☐ Fulfilment of the prescribed norm (minimum number of resolved judgments) x Adherence to time-limits (e.g. writing the reasoning of a judgment in the prescribed time) : According to the decree adopted by the Minister of Justice cases should not be pending for longer than two years within the same court instance. Such cases are to be monitored by the chairman of the court. x Other (specify): Every year the chairman of a court has to submit a report to the judge’s examination committee concerning the judges of that court that have held office for less than three years (applies only to judges of first and second instance) . This report contains a section where the chairman of the court is expected to provide statistics on how many decisions of that judge have been changed or overturned by the next instance courts. ☐ Qualitative appraisal of judge's work: Assessment of judge's judgments: ☐ Judgments are never evaluated x Assessment of structure of individual judgments . This is only assessed in the case of judges that have held office for less than three years in the framework of regular evaluation. This aspect should be covered in the report of supervising judge (that has been appointed for all first instance court judges for their first year) and in the reports of the chairman of the court submitted to the judges’ examination committee (for all first and second instance judges that have held office for less than three years) x Assessment of content of individual judgments, e.g. formal validity of a judgment, its logic, and the extent to which the jurisprudential knowledge is taken into consideration . This is only assessed in the case of judges that have held office for less than three years in the framework of regular evaluation. This aspect should be covered in the report of supervising judge (that has been appointed for all first instance court judges for their first year) and in the reports of the chairman of the court submitted to the judges’ examination committee (for all first and second instance judges that have held office for less than three years) ☐ Assessment based on how many judgments were overturned (partially or fully) in appeal (appeal success rate) x Other (specify): For judges that have been appointed for longer than three years the assessment of judgments may occur in the framework of disciplinary proceedings should this be the matter under scrutiny. 1.5.1.3 Where have these criteria been defined? [ several answers possible] ☐ In law ☐ In an act adopted by the Council for the Judiciary ☐ In well-established practice x Other (specify): The principle that cases pending longer than two years are under the close supervision of the chairman of a court is established in the decree of the Minister of Justice . Criteria for evaluating judges that have held the office for less than three years has been developed by the judges’ examination committee. 1.5.2 . Please specify the types of disciplinary sanctions against judges and their numbers in 2015 [ several answers possible] ☐ Wri tten warning - number in 2015: 0 ☐ Lowering of judge's s alary - number in 2015: 0 ☐ Termination of judge's promotion - number in 2015: 0 ☐ Transfer of the judge without her /his consent - number in 2015: 0 ☐ Other (specify): Reprimand: 1 1.5.2.1 Can a judge appeal against a disciplinary sanction? x Yes ☐ No 1.4.1. If yes, which authority or body decides on such an appeal? ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Court responsible for disciplinary measures for judges (e.g. disciplinary senate, civil service court…) ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Administrative court / President of the Administrative Court x Supreme Court / President of the Supreme Court (the Supreme Court en banc hears appeals on the decisions of the Judges Disciplinary Committee) ☐ Constitutional Court / President of the Constitutional Court ☐ Other (specify): … 1.4.2. What was the total number of appeals against disciplinary sanctions in 2015? [If only an estimate is available, add "approx. …" or "fewer than …".] In all courts: x : 0 / ☐ N/A If possible, specify this number for judges in different areas (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A 1.5.3 . Is it possible for a judge to temporarily become a politician/minister/government official/cabinet member? ☐ Yes ☐ No 1.5.3 . 1 If yes, do you have any rules in place when such a person returns to the judgeship? [ several answers possible] ☐ There are no specific rules in place, but the general ethical norms apply ☐ There are specific rules in place, which limit the areas in which the judge can work, upon returning to judgeship (specify which rules, for which areas and, if applicable, which body authorises a judge to temporarily work outside judgeship): … ☐ Other (specify): …….. 1.6. Financial resources 1.6.1. Authorities and b odies responsible for financial resources [Please insert an “x” into the box that corresponds to the situation in your country; several answers possible; insert "N/A" when the situation is not applicable in your country; if relevant, you can additionally insert the following explanations: "FS" (final selection), "CA" (consultative advice – the body can provide its opinion), "MA" (mandatory advice – the body must provide its opinion, the content of which is either binding or not for the deciding authority), "D" (decision). Please insert "OF" (obligation to follow) if the deciding authority has an obligation, either by law or practice, to follow the opinion given] involvement in the preparation of the "budget allocated to courts" formal proposal on the budget allocated to courts adoption of the budget allocated to courts management of the budget allocated to courts evaluation/audit of the budget allocated to courts definition of criteria for determining financial resources (see 1.6.2.) a) b) c) d) e) f) President of a court: X x Special chamber of a court: Higher court / President of the Higher court : Supreme Court / President of the Supreme Court : X x Council for the Judiciary: CA Judicial inspection body: Other independent body (specify): The National Audit Office x Ministry/Minister of justice : only for 1 st and 2 nd instance courts x x x x Other ministry than min. of justice (specify): … D Parliament: D Head of state : if applicable- on advice of … Other (specify) : … 1.6.2. What are the prescribed methods or criteria for determining financial resources for the judiciary? [ several answers possible] [Please electronically tick the checkbox (" ☒ ") next to the corresponding reply (by clicking on it in Microsoft Word for Windows), or (in case of difficulties with the checkboxes) by marking relevant reply in bold or highlighting it.] X amount based on historic and/or realised costs X number of incoming cases: specify for which instance: x 1 st / x 2 nd / ☐ all / ☐ N/A X number of resolved cases: specify for which instance: ☐ 1 st / ☐ 2 nd / ☐ all / ☐ N/A ☐ number of resolved cases - based on an evaluation of the cost for courts ☐ other (specify): … 1.6.3. Where have these criteria been defined ? [ several answers possible] X In well-established practice ☐ In law X Other (specify): Specific contracts have up to recently been concluded between the Ministry of Justice and first and second instance courts which set out specific goals for courts . The funding of first and second instance courts has depended to some extent on the contracts concluded between the courts and the Ministry of Justice (e.g. extra finances for court personnel). The current process may be changing in 2017 1.7. Governance of the Judiciary [Please insert an “x” into the box that corresponds to the situation in your country; several answers possible; insert "N/A" when the situation is not applicable in your country; if relevant, you can additionally insert the following explanations: "FS" (final selection), "CA" (consultative advice – the body can provide its opinion), "MA" (mandatory advice – the body must provide its opinion, the content of which is either binding or not for the deciding authority), "D" (decision). Please insert "OF" (obligation to follow) if the deciding authority has an obligation, either by law or practice, to follow the opinion given.] general management of a court adopting press guidelines for relations between courts and the media communicating with the media (e.g. on questions regarding judgments, court functioning) decisions regarding the implementation and use of Information and Communication Technology in courts decisions regarding court buildings decisions regarding court security a ) b ) c ) d ) e ) f ) President of a court: D x X X Higher court / President of the Higher court : Supreme Court / President of the Supreme Court : D x x x Court service governed by the Judiciary: Council for the Judiciary: CA x CA CA CA Judicial inspection body: Other independent body (specify): … Court service governed by the Ministry of justice: Ministry/Minister of justice : D D D D Other ministry than min. of justice (specify): … Other (specify) : Director of the court x x Judge responsible for media relations x Press officer at a court x 1.7.1. Authorities and b odies responsible for court staff (other than judges) [Please insert an “x” into the box that corresponds to the situation in your country; several answers possible; insert "N/A" when the situation is not applicable in your country; if relevant, you can additionally insert the following explanations: "FS" (final selection), "CA" (consultative advice – the body can provide its opinion), "MA" (mandatory advice – the body must provide its opinion, the content of which is either binding or not for the deciding authority), "D" (decision). Please insert "OF" (obligation to follow) if the deciding authority has an obligation, either by law or practice, to follow the opinion given.] decision regarding the total number of court staff (other than judges) at all courts decision regarding the number of court staff at particular courts appointment and dismissal of court staff decisions regarding the transfer of court staff from one court to another decisions regarding the promotion/disciplinary matters concerning court staff other human resource management decisions on court staff (e.g. holidays) a) b) c) d) e) f) President of a court: x x x x x Higher court / President of the Higher court: Supreme Court / President of the Supreme Court: x x x x x Court service governed by the Judiciary: Council for the Judiciary: Judicial inspection body: Other independent body (specify): … Court service governed by the Ministry of justice: Ministry/Minister of justice : x x x Other ministry than min. of justice (specify): … Other (specify) : Director of a court x x x x x PROCEDURES AND SANCTIONS FOR PROTECTING JUDICIAL INDEPENDENCE 2. 1 W hat are the measures that authorities and bodies can take either on the basis of a complaint/ request or autonomously in order to protect judicial independence in case of an attack ? What was the total number of such measures in 201 5 ? [ several answers possible; if only an estimate is available, add "approx. …" or "fewer than …".] ☐ A press release / formal public declaration on judicial independence from (specify) : ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Judicial inspection body ☐ Court ☐ President of a court ☐ Higher court / President of a higher court ☐ Supreme Court / President of the Supreme Court ☐ Public Prosecution Service ☐ Other (specify): … In 2015 , there were 0 such press releases/ public declarations. ☐ An authority (specify which ): ……… takes a measure (specify what type): ……… In 2015 , there were ……… such measures . ☐ N/A Please note that in theory any of the listed bodies/institutions (apart from Judicial inspection body as there is none) could issue a press release if they so wish. There is no prohibition to do so. In 2015 there were no such statements/press releases issued. The most likely would be for the Council for the Judiciary to adopt such a statement (as they have for example adopted statements addressed to the Parliament concerning the allocation of budget to the judiciary). IMPARTIALITY – WITHDRAWAL AND RECUSAL 3 .1. Is a judge obliged to withdraw from adjudicating a case if the judge believes that impartiality is in question or compromised or that there is a reasonable perception of bias ? ☐ Yes ☐ No 3 .1 . 1 . If yes, what is the source of the obligation to withd raw from adjudicating a case ? ☐ A well- established practice of judges ☐ Set in an act adopted by a court ☐ Set in an act adopted by the Council for the Judiciary ☐ Set in an act adopted by the Minist e r of justice ☐ Set in law ☐ Other (specify) : … 3.1. 2 . If a judge disrespects the obligation to withdraw from adjudicating a case, could the judge be subject to a sanction ? ☐ Yes (specify ; e.g. type of disciplinary measure ): This could provide grounds for commencing disciplinary proceedings against a judge (no such cases presently exist). ☐ No 3 .2 . Which authority or body takes the first decision on a request for recusal by a party who considers that a judge is partial / biased ? [ several answers possible ] ☐ The single-judge who is adjudicating in the same case (when a recusal request is directed against this judge) ☐ The panel of judges adjudicating in the same case (when a recusal request is directed against a member of this panel or against the whole panel) ☐ Another judge at the same court (e.g. selected on seniority or appointed) ☐ A special chamber of the same court ☐ President of the same court ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Supreme Court / President of the Supreme Court ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ M inistry of justice / M inister of justice ☐ Other (specify) : … 3 .2 . 1 . In case a different authority or body decides in different types of proceedings (civil, administrative…) , please describe the differences and specify for which proceedings the replies under 3.2. refer to : I C riminal proceedings : The removal procedure depends slightly depending on the different grounds of removal and on whether the initiative for removal comes from the parties or the judge. The procedure of removal of a judge is regulated in the Code of Criminal Procedure (§ 49-§50). A Removal at the initiative of the judge: When the request of recusal is related to any of the following reasons: 1) judge has previously made a decision or a judicial decision of a lower court in the same criminal matter which was annulled by a higher court in part or in full, except in the case the higher court referred the criminal matter in the annulment of the decision for a new hearing by the same court panel ; 2) judge has made a court ruling as a preliminary investigation judge in the same criminal matter, except in the hearing of the criminal matter in set tlement and summary proceedings; 3) judge has previously been subject to criminal proceedings on another basis in the same criminal matter ; 4) judge is or has been a person close to the accused, victim or civil defendant the judge himself/herself can remove themselves (judge needs to draw a formalised petition). When the judge feels that he/she cannot be impartial for a reason not listed above the judge shall submit a petition of challenge to the chairman of the court or a judge appointed by the chairman (who then has to decide the recusal) . The petition of challenge of the chairman of a county court shall be adjudicated the chairman of a circuit court or a judge appointed by the chairman. The petition of challenge of the chairman of a circuit court shall be adjudicated the Chief Justice of the Supreme Court or a justice appointed by the Chief Justice. The petition of challenge of a justice of the Supreme Court shall be adjudicated by the court panel hearing the matter. B. Removal at the initiative of parties: Parties to the proceedings can also request the removal of a judge. Petitions of challenge shall be submitted at the opening of a court session. If the basis for a judge to remove himself or herself becomes evident later and the court is immediately notified thereof, petitions of challenge may be submitted before the final rebuttal of the accused. Petitions of challenge shall be adjudicated by a ruling made in chambers. A petition of challenge regarding a judge shall be adjudicated by the rest of the panel of the court in the absence of the judge to be removed. In the event of an equal division of votes, the judge is removed. A petition of challenge against several judges or the full panel of the court shall be adjudicated by the same panel of the court by a simple majority. If a court panel finds that the petition of challenge has to be satisfied for a reason not specified in law (see the list of 1-4 mentioned above) no ruling shall be made but the petition of challenge shall be referred to adjudication to the chairman of the court or a judge appointed by the chairman. If a criminal matter is heard by a judge sitting alone, the judge shall adjudicate petitions of challenge himself or herself. If a judge finds that the petition of challenge has to be satisfied for a reason not specified in law (see the list of 1-4 mentioned above) t he judge shall refer the petition of challenge to the chairman of the court or a judge appointed by chairman. II C ivil and administrative proceedings : The removal procedure depends slightly depending on the different grounds of removal and on whether the initiative for removal comes from the parties or the judge. The procedure of removal of a judge is regulated in the Code of Civil Procedure (§ 23-§27 ). The Code of Administrative Court Procedure makes reference to the Code of Civil Procedure. A. Removal at the initiative of parties: A petition of challenge is submitted to the court to a panel of which the judge whose removal is requested belongs. If the judge or court panel concerning whom a petition of challenge has been submitted considers the petition to be justified, it makes a ruling on removing themselves. If the judge does not remove himself or herself and does not form a position concerning the petition of challenge, the petition is adjudicated by a ruling of the court panel to which the judge whose removal is requested belongs. The judge whose removal has been requested does not participate in deciding such matter. Upon an equal division of votes, the judge whose removal was requested is deemed to be removed. If a petition of challenge was submitted for removal of the entire panel adjudicating a matter or a judge sitting alone and the panel or judge fail to remove themselves, the matter of removal is adjudicated by the chairman of the court. If a petition of challenge is submitted against all the judges of the court, the removal is decided by the chairman of the court of the following instance. If a petition of challenge is submitted against the entire panel of the Supreme Court adjudicating a matter, the petition of challenge is adjudicated by such panel. If a judge does not remove himself or herself on the basis of a petition of challenge, he or she shall immediately inform the court or judge competent to adjudicate the removal about his or her position concerning the basis for removal. B Removal at the initiative of the judge: A judge shall not adjudicate a civil matter and shall remove himself or herself in the following cases: 1) in a matter in which he or she is a participant in the proceeding or a person against whom a claim arising from the proceeding may be filed; 2) in a matter of his or her spouse or cohabitee, and in a matter of a sister, brother or direct blood relative of his or her spouse or cohabitee even if the marriage or permanent cohabition has ended; 3) in a matter of a person who is his or her direct blood relative or other person close to him or her ; 4) in a matter in which he or she is or has been a representative or adviser of a participant in the proceeding or in which he or she participated or had the right to participate as the legal representative of a participant in the proceeding; 5) in a matter in which he or she has been heard as a witness or expert providing an opinion; 6) in a matter in which he or she participated in pre-trial proceedings, in the preceding court instance or in making a decision in arbitration proceedings; 7) if any other circumstances exist which give reason to doubt the impartiality of the judge. If a judge himself or herself find s that a circumstance listed above from 1 to 6 which provide basis for his or her removal exists, the judge makes a ruling on his or her removal. If a judge himself or herself finds that if any other circumstances exist which give reason to doubt the impartiality of the judge and which provides basis for his or her removal exists, the judge requests his or her removal from the court panel or chairman of the court. Note, as general rule the annulment of a decision at the higher court due to failure to remove a judge may be applied for in an appeal only if the petition of challenge was submitted to the lower court on time or if the basis for removal was created or became evident after the adjudication of the case in such court. 3.3. If available what was the total number of successful recusal challenges by parties in 201 5 in which a lack of impartiality or a reasonable perception of bias was established? [If only an estimate is available, add "approx. …" or "fewer than …".] In all courts: ☐ :………… / ☐ N/A If possible, specify this number for different types of proceedings (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A 3 .4 . Is an appeal against a decision on a request for recusal possible? ☐ Yes : ☐ No There is no specific appeals procedure for a request for recusal. However, a s a general rule the annulment of a decision at the higher court due to failure to remove a judge may be applied for in an appeal only if the petition of challenge was submitted to the lower court on time or if the basis for removal was created or became evident after the adjudication of the case in such court. 3 . 4 . 1. If yes, which authority or body decides on such an appeal? ☐ Another judge at the same court (e.g. selected on seniority or appointed) ☐ A special chamber of the same court ☐ President of the same court ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Supreme Court / President of the Supreme Court ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Minister of justice ☐ Other (specify) : 3.4.2. What was the total number of appeals against decisions on recusal requests in 201 5 ? [ for example, when a party to the case requested a judge to be recused but this request was rejected, and then this party appealed against the rejection; if only an estimate is available, add "approx. …" or "fewer than …".] In all courts: ☐ :………… / ☐ N/A If possible, specify this number for different types of proceedings (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A IRREMOVABILITY - TRANSFER OF JUDGES WITHOUT THEIR CONSENT 4 .1. Can a judge be transferred (temporarily or permanently) to another judicial office (to other judicial duties, court or location) without his/ her consent? ☐ Yes only within the same settlement (city) ☐ No 4.1.1. If yes, which authority or body decides on a (temporary or permanent) transfer of a judge without his/her consent? [if several authorities are responsible and have different powers depending on the ground for transfer, please write "for disciplinary reasons", "for organisational reasons" or "for other reasons" next to the relevant authority] ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Court responsible for disciplinary measures for judges (e.g. disciplinary senate, civil service court…) ☐ President of the same court ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Supreme Court / President of the Supreme Court ☐ Constitutional C ourt / President of the Constitutional Court ☐ Ministry of justice / Minister of justice ☐ Head of state ☐ Other (specify) : … 4 .2 . For what reasons can a judge be transfe rred without his/ her consent? [ several answers possible ] ☐ For disciplinary reasons ☒ For organisational reasons (specify ; e.g. closure of a court ) : Within the same settlement, a chairman of a court in the interests of the organisation of administration of justice may appoint a judge to permanent office without his or her consent to another courthouse of the same court. The chairman of the court shall first consider the opinion of the full court. ☐ For other reasons (specify) : 4.2.1. At what level are these reasons prescribed? ☐ In law ☐ Other (specify): 4. 3 . In case a judge is transferred without his/her consent is he/she guaranteed an equivalent post (in terms of a position, salary…) ? ☐ Yes ☐ No 4.4. What was the total number of judges transferred without their consent in 201 5 ? [ if only an estimate is available, add "approx. …" or "fewer than …".] In all courts: x : 0 / ☐ N/A If possible, specify this number depending on the reason for transfer without consent: For disciplinary reasons: ………… For organisational reasons: ………… For other reasons: ………… If possible, specify this number for judges in different areas (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A 4 . 5 . Can a judge appeal if he/she is transferred without his/her consent? ☐ Yes ☐ No 4. 5 .1 . If yes, which authority or body decides on such an appeal? ☐ Council for the Judiciary ☐ Other independent body (specify): … ☐ Court responsible for disciplinary measures for judges (e.g. disciplinary senate, civil service court…) ☐ President of the same court ☐ Another court / President of another court ☐ Higher court / President of a higher court ☐ Supreme Court / President of the Supreme Court ☐ Constitutional C ourt / President of the Constitutional Court ☐ Minister of justice ☐ Head of state ☐ Other (specify) : The judge can theoretically challenge the order of the president of the court in the administrative court. 4.5.2. What was the total number of appeals against transfers of judges without their consent in 201 5 ? [If only an estimate is available, add "approx. …" or "fewer than …".] In all courts: x : 0 / ☐ N/A If possible, specify the number of appeals depending on the reason for transfer without consent: For disciplinary reasons: ………… For organisational reasons: ………… For other reasons: ………… If possible, specify the number of appeals by judges in different areas (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A ALLOCATION OF CASES 5.1. Are the criteria for allocating cases within a court defined? ☐ Yes ☐ No 5.1.1. If yes, where have these criteria been defined? [ several answers possible] ☐ In well-established practice of the court ☐ In an act adopted by the court ☐ In implementing regulations ☐ In law ☐ Other (specify): … 5.2. How are cases assigned to judges at the first instance courts? ☐ President of the court assigns cases ☐ A member of the court staff assigns cases (e.g. listing officer) ☐ A special chamber of the court assigns cases ☐ The cases are assigned randomly (e.g. through a computerized system ) X The cases are assigned according to a pre-defined order (e.g. alphabetic, subject matter) ☐ Other (specify) : … The assignment of cases is regulated in § 36 and 37 of the Courts Act: https://www.riigiteataja.ee/en/eli/516032015002/consolide 5.3. Is the allocation of cases subject to supervision (e.g. regular checks of the practice of allocation)? ☒ Yes ☐ No 5.3.1. If yes, by whom? [ several answe rs possible] ☐ By court staff ☐ By the President of the court ☐ By the Council for the Judiciary ☐ By anot her independent body (specify): … ☐ By the Judicial inspection body ☐ Other (specify) : … 5.3.2. In the last five years, has the system for the allocation of cases been subject to a general review or assessment to check for any potential deficiencies? ☐ Yes x No (the Ministry of Justice has not conducted a general review; case assignment is considered an internal matter of a court. Within the court the case allocation is once a year subject to review by judges themselves .) 5.3.2.1. If yes, what was the follow-up to the findings of such a general review/assessment? [ several answers possible] ☐ Changes to the system of allocation of cases ☐ Changes to the practices concerning the allocation of cases ☐ Other (specify): … INTERNAL INDEPENDENCE 6 .1 . In your system, are there hierarchically superior courts/judges with the power to ensure on their own initiative the uniformity or consistency of judicial decisions delivered by the courts/judges under their supervision ( outside of an appeal system , the precedent doctrine or a preliminary ruling system) ? ☐ Yes x No 6 .1 .1. If yes, which courts/judges have such a power? ☐ Division heads at particular courts ☐ Presidents of the courts ☐ Appeal courts / Presidents of appeal courts ☐ Supreme Court / President of the Supreme Court ☐ Other (specify) : … 6 .1 .2. If yes, w hat kind of decisions can hierarchically superior courts/judges deliver on their own initiative to ensure the uniformity or consistency of judicial decisions outside of an appeal system or the precedent doctrine? ☐ An advisory opinion of general application ( for all courts/judges ) ☐ An obligatory decision of general application ( for all courts/judges ) ☐ An advisory opinion of concrete application ( to a specific judicial decision ) ☐ An obligatory decision of concrete application ( to a specific judicial decision ) ☐ A practice statement or direction applicable to particular kinds of cases ☐ Other (specify) : … 6.1.3. If yes, what was the total number of such decisions in 201 5 ? [If only an estimate is available, add "approx. …" or "fewer than …"] In all courts: ☐ :………… / ☐ N/A If possible, specify this number for different types of proceedings (civil, administrative…): … : ☐ :………… / ☐ N/A … : ☐ :………… / ☐ N/A Saatja: Secretariat Network of the Presidents <[email protected]> Saaja: Priit Pikamäe, Info, Liis Lindström Teema: Questionnaire on judicial independence (2016) Dear President, Please find attached an updated questionnaire on judicial independence which was developed by the Directorate-General for Justice and Consumers of the European Commission in cooperation with the European Network of Councils for the Judiciary (ENCJ). Since 2013, you have contributed to collect factual information on structural guarantees for judicial independence. The results of last year have been published in the 2016 EU Justice Scoreboard <http://ec.europa.eu/justice/effective-justice/files/justice_scoreboard_2016_en.pdf> . The objective of the updated questionnaire is the same as previous years and aims to collect factual information on structural guarantees for judicial independence, which cover certain guarantees for the independence of judges and for the independence of the judiciary. Please note that: The updated judicial independence questionnaire maintains almost all questions from the 2015 questionnaire and is already prefilled with the replies you have provided. Please feel free to adapt the 2015 replies, if the legislation or practice in your country has changed or if you believe the replies should be clarified. Please highlight any such changes red. New or modified questions are highlighted yellow. These mostly concern some clarifications on the appointment of judges, questions regarding systems for evaluation of judges and disciplinary measures regarding judges, questions on the so called revolving door issue, and a simplified question 2. The questionnaire containing replies could later be published. We would kindly ask you to provide replies to the updated questionnaire by the 23rd of December 2016 to: [email protected] If you require any clarifications please do not hesitate to contact Jože Štrus in the Directorate-General for Justice and Consumers directly ([email protected] tel.: +32 229-68992). Many thanks for your cooperation. Yours sincerely, Jean-Jacques Arnaldez Réseau des Présidents des Cours suprêmes judiciaires de l'Union européenne Network of the Presidents of the Supreme Judicial Courts of the European Union Carré St Germain, 5 quai de l'Horloge 75055 Paris cedex 01 TSA 79201