Strasbourg, 18 February 2008

CCJE/REP(2008)28

English only

Consultative Council of European Judges (CCJE)

Questionnaire for 2008 ccje opinion concerning the quality of judicial decisions: Reply submitted by the delegation of Estonia

Preparatory questionnaire for the 2008 CCJE opinion concerning the quality of judicial decisions

1.         Is there a specific model to be followed in drafting judicial decisions?

The guidelines for drafting judgments are set out in procedural laws.[1] The present form of a judgment has developed in the course of time and thus, as a rule, the judicial decisions deal with the following aspects in the following order:

1.         The name of the court rendering the judgment.

2.         Data concerning the court case:

number of the case, date of judgment, composition of court, parties to the case, data concerning the judgment appealed against in Circuit or Supreme Court, content of the claim/appeal, type of the claim/appeal, notice as to whether the case shall be adjudicated in oral or written proceeding.

3.         Decision (conclusion) of the judgment.

4.         Judgments of county, administrative and Circuit Courts set out information on the possibilities of appeal.

5.         Facts, and in the Circuit and Supreme Court the overview of the course of the proceeding so far (e.g. in Supreme Court judgment the concise overview of course of proceeding in the first and second instances).

6.         Opinions of the participants in the proceeding.

7.         Reasoned decision of the court.

Guidelines for drafting rulings are set out in procedural laws.[2] By a ruling a court directs and organises the proceeding (e.g. a proceeding shall be suspended by a ruling when a preliminary ruling is requested from the European Court of Justice) and adjudicates the procedural petitions of the participants in the proceeding. The form of rulings has also developed in time, and thus, in general, they deal with the following aspects in the following order:

1.         The name of the court rendering a ruling.

2.         Time and place of ruling.

3.         Number of the case.

4.         Composition of court.

5.         Names of the persons participating in court session.

6.         The data concerning the contested ruling/judgment, the appellant and the type of appeal.

7.         The decision (conclusion) of the ruling.

8.         Information on possibilities of appeal.

9.         The content of the ruling and the legislation on which the ruling is based.

Can each individual judge choose his own style of drafting his decision?

Yes, a judge can use his/her own style when drafting a judgment. There are no binding rules as to the vocabulary of judgments. Some advisory linguistic manuals have been published, advising on writing judgments and point out the most wide-spread linguistic errors in judgments.[3] In some courts (e.g. at the Supreme Court) there are language editors who review the judgment from linguistic point of view.

2.         Where the court is composed of more than one member, do judicial decisions have to be taken unanimously or a majority decision is equally effective and binding? In a two or even more member panel, does the president or most senior judge have a second or casting vote?

In county, administrative and circuit courts and the Supreme Court the general requirements for adopting decisions are similar. Unanimity is not a prerequisite of adoption of a collegial decision, a majority decision is decisive. If a judge has an opinion dissenting from that of the majority, he or she has the right to present it.[4] (Dissenting opinions of the justices of the Supreme Court are published with the judgments on the court’s homepage at www.riigikohus.ee and in part III of the Riigi Teataja [State Gazette]).

a)         In the case of collegial decisions, as a rule, none of the judges has a more decisive vote than the others.

           

b)         The Supreme Court decides on the acceptance of appeals in the composition of three judges. A case is accepted if at least one justice so requires.

c)         In the Supreme Court a case is transferred to the full composition of a Chamber for hearing if at least one justice of the three-member panel so requires. If the full composition of a Chamber does not come to an agreement, the Chamber can transfer the case to the general assembly of the Supreme Court (composed of all justices of the court) for hearing (there are 19 justices; 11 constitute a quorum).

d)         The general assembly of the Supreme Court constitutes an exception to the above described. In the case of a tie vote the Chief Justice of the Supreme Court, who is ex officio chairman of the general assembly, has the decisive vote. Such a situation is very rare.

3.         Do judicial decisions have to deal with all points raised by the parties or their lawyers or is a synthetic or concise approach considered sufficient?

In the first court instance the judgment must reply to all the issues raised by the parties. If the judgment is appealed against, the court of appeal or cassation can, if necessary, make a reference to the judgment of lower instance and say that there the raised issue has already been exhaustively examined. There are some differences according to types of proceeding, e.g. the Code of Criminal Procedure enumerates exhaustively the points raised, which shall be dealt with in a judgment.[5]

4.         In general terms, how is a first instance judicial decision drafted?

General rules for drafting decisions are similar for all court instances. These rules are set out in procedural laws (see reply to question no 1 and footnotes). In all three court instances the judgments are rendered on behalf of the Republic of Estonia.[6]

How in general terms is an appeal/supreme court decision drafted? Is the appeal in your country by way of rehearing the case or not?

The rules for drafting decisions in appellate and cassation courts are the same as applicable upon drafting first instance court decisions. In the appellate proceedings the case is reheard in full, in cassation proceedings the Supreme Court only examines whether a rule of procedural law has been violated or a rule or substantive law has been misapplied. The essential differences of procedure in different court instances give rise to differences upon drafting decisions. In the Supreme Court the proceedings, as a rule, are written, except when a party or a participant in the proceeding requires an oral proceeding.

5.         Is there a difference in the way a judgment is drafted according to the subject matter (civil, criminal, administrative)?

Formal requirements are generally the same in civil, criminal and administrative cases. Yet, the differences arising from substantive law affect the general lay-out and form of judgments. For example, the Code of Criminal Procedure enumerates the aspects to be dealt with in the cases of acquitting or convicting judgments.[7]

As a rule, the Supreme Court judgments in criminal cases are shorter than those in civil cases. The Supreme Court judgments in administrative cases make fewer references to procedural laws and instead pay more attention to the substantive aspect of cases. There are also special requirements to the judgments of the Supreme Court acting as a constitutional court (in constitutional review matters), e.g. the contested stipulation of a legal act has to be reproduced and the formal and substantial legality of the contested stipulation is reviewed.

6.         Could you describe precisely how the decision is transmitted to the parties?

All Estonian court judgments and rulings are made public whether by pronouncement in the court room or through court office, except in cases where the interests of a minor, a spouse or – in criminal matters – also of a victim require otherwise.

In civil and administrative matters the court proclaims at the end of the court session, when and where the judgement will be pronounced or made public. The participants of the proceedings can receive copies of a judgement or court ruling from the court office. In administrative matters a copy of a court judgement or ruling has to be immediately sent also to the administrative agency or official who issued the administrative act or took the measure against which an action was filed. If a participant in a proceeding has failed to appear in court and the matter was adjudicated without his or her attendance, the conclusion of the court judgment shall be published in the newspaper in which court notices are published.

In criminal procedure at least a conclusion of a judgement is always pronounced in the courtroom. In case of pronouncing only the conclusion, the court shall explain orally the main reasons for the judgment. After the pronouncement of a judgment or the conclusion the court shall give notification of the date on which the court judgment will be available in court for examination by the parties to the court proceedings, and the term for appeal. Court shall explain the procedure for appeal and the possibility to waive the right of appeal.

At the request of a party to the court proceedings, a copy of the court judgment shall be submitted to him or her. A court shall send a copy of the decision to a party to the court proceeding who did not participate in the pronouncement of the decision. If the accused is under arrest, a copy of the court judgment shall be sent to him or her immediately after the court judgment has been pronounced.

Is the judicial decision binding only on the specific litigants or does it affect the public in general?

A judgment rendered on the basis of concrete facts is binding first of all to the parties of the case (inter partes). The Supreme Court judgments are considered as a source of law,[8] and thus the ratio decidendi of a Supreme Court judgment has a wider effect.

The Supreme Court judgments are quoted by the media, in scientific research and articles. Generally, the public is more interested in the Supreme Court judgments rendered in the constitutional review cases. Thus, the established practice is that a press release concerning each constitutional review judgment is drawn up.

Does your country acknowledge a difference in judicial decisions in personam and in rem?

In Estonia the judgments are not categorized pursuant to in personam and in rem criteria.

7.         How is a judicial decision enforced in your country?

The execution of court judgments is secured by the bailiffs (e.g. the bailiff seizes and sells the debtors assets).[9] The legal status and disciplinary liability of bailiffs and the bases for remuneration of bailiffs are regulated by the Bailiffs Act. In administrative cases the court may set a term for the execution of a court judgment which begins to run upon entry into force of the judgment. A court judgment shall be executed immediately in the cases provided by law, or if the court has ordered the immediate execution of the judgment in the cases provided by law. If a court restores a term for appeal or a term for cassation, the court shall suspend the execution of the judgment by a ruling. A court shall not suspend the execution of a court judgment if the judgment is subject to immediate execution.  

Does your country allow for contempt proceedings against a litigant who does not comply with a decision/order of the court?

If a person is unwilling to voluntarily execute a court decision, he or she will also have to pay the bailiff’s fee and the incurred enforcement costs.

For a failure to comply with a precept contained in a court judgment, the administrative court can impose a fine up to 100 000 kroons (Estonian crowns) on the participant in proceeding at fault.[10] The imposition of a fine does not exempt a person from complying with the decision.

In criminal proceedings, if a convicted offender was not kept under arrest during the court proceeding, the county court enforcing the court decision shall send a notice prepared according to the treatment plan to the convicted offender, setting out by which time and to which prison the convicted offender must appear for the service of the sentence.[11] Estonian Penal Code contains a provision sanctioning the evasion of service of sentence. Pursuant to § 329 of the Penal Code evasion of resumption of the service of a sentence by a prisoner who has been permitted to leave the custodial institution, or evasion of the service of any other sentence which has been imposed for an offence by a court judgment and enforced, is punishable by a pecuniary punishment or up to one year of imprisonment.)

8.         Are judicial decisions handed down/announced in open court?

A judgment is publicly announced by pronouncement or through making public in the court office.[12] In criminal cases, as a rule, a judgment is pronounced publicly.[13] (E.g. the Code of Criminal Procedure contains a provision to the effect that after the pronouncement of the judgment the judge shall ask whether the person acquitted or convicted understands the court judgment and explain the content of the judgment to him or her if necessary.[14])

If a judgment is pronounced at court session, the public may participate, except when the court session or a part thereof has been declared closed.

Always or can the public/journalists be excluded? – If so on what grounds?

Generally the judicial decisions are handed down/announced in open court, unless the court has declared the court session or a part of it to be held in camera, which can be done

·               in order to protect a state or business secret,

·               in order to protect private and family life of a person,

·               in the interests of a minor,

·               in the interest of justice,

·               in the interest of a party to the court proceeding or a witness.

9.         To what extent do judicial decisions in your country take into account personal data protection legislation (i.e. publication of litigants’ names, other personal details etc)?

In Estonia the Personal Data Protection Act has been enforced and the purpose of this Act is the protection of the fundamental rights and freedoms, especially the right to inviolability of private life, of natural persons with regard to processing of personal data. The Personal Data Protection Act is applied to court proceedings, taking account of the specifications provided for in procedural codes.[15] At the request of data subject or on the court’s initiative the court shall replace, in a judgment which has entered into force, the name of the data subject with initials or characters, and personal identification code, registry code, time of birth or address of the data subject shall not be disclosed. At the court's initiative or based at the request of the data subject, the court shall publish in the computer network only the conclusion of the judgment or shall fail to publish the judgment if the judgment contains private or sensitive personal data or if publication of the judgment together with personal data may materially breach the inviolability of private life of the person.[16]

Published court decisions in criminal cases shall disclose the name and personal identification code or, in the absence of the personal identification code, date of birth of the accused. A court shall replace the names and other personal data of other persons with initials or characters. A court decision shall not disclose the residence of a person. If the court decision allows identification of a person although the names and other personal data have been replaced with initials or characters, the court shall publish, on its own initiative or at the request of the data subject, only the conclusion or final part of a court decision.[17]

(Personal data is private, if it reveals details of family life or the provision of social assistance or social services, describes mental or physical suffering or if it is collected during the process of taxation, except data concerning tax arrears. Personal data is sensitive, if it reveals political opinions, religious or philosophical beliefs, ethnic or racial origin, state of health or disability, genetic information, sexual life, membership in trade unions or if it is collected in criminal proceedings before a judgment is made in a matter concerning an offence, or if this is necessary in order to protect public morality or the family and private life of persons, or where the interests of a minor, a victim, a witness or justice so require.[18])

10 and 11.       Are judicial decisions available to persons or authorities other than the litigants themselves? If so on what terms and prerequisites?

A court judgment and a court ruling which have entered into force are published in the computer network in the place prescribed therefore, after which the judgment becomes accessible to the public. A court judgment or ruling enters into force when it can no longer be contested in any other manner except by review procedure. (Certainly, there are exceptions to the general rule. For example, if a judgment contains information regarding restriction on access prescribed by law, a court shall publish, on its own initiative or at the request of the interested person, only the conclusion of the judgment.)

11.       Are judicial decisions published/available on the internet? If so, are all decisions available or only appeal or supreme court cases?

On the Internet all the judicial decisions are available, not only cases of appeal or of the Supreme Court. The judicial decisions of first and second instance courts are made public through the information system KIS (www.kohus.ee/kohtulahendid/index.aspx). The judicial decisions of the Supreme Court are published on the official homepage of the court (www.riigikohus.ee) and on the official homepage of the Riigi Teataja [State Gazette (part III)] (www.riigiteataja.ee/ert/ert.jsp?link=coming-soon&ID=12926405).

12. Is a system of evaluation of quality of justice in force in your country?

There is no clearly worded system for the evaluation of quality of justice, approved by all judges of Estonia. The right of appeal to appellate and cassation courts can certainly be regarded as one of the methods for evaluating the quality of justice.

Pursuant to the presently valid Courts Act it is the chairmen of county, administrative and circuit courts and the Chief Justice of the Supreme Court who are responsible for the proper functioning of justice, including the quality of justice. Justice can be effectively administered when it is based on good courts’ administration. Pursuant to the Courts Act courts of the first instance and courts of appeal are administered in co-operation between the Council for Administration of Courts and the Ministry of Justice.[19] Thus, the Courts Act sets out the basic requirements to be born in mind upon administration of courts: to ensure the possibility for independent administration of justice, the working conditions necessary for administration of justice, adequate training of court officers and the availability of administration of justice.[20]

Neither the Estonian Ministry of Justice, the Council for Administration of Courts, nor the Supreme Court has created a unified system for evaluation of quality of justice. Nevertheless, indirect evaluation methods are in use in Estonia.

1)         E.g. the work-load points – the first steps, commissioned by the Council for Administration of Courts, are being taken to more objectively evaluate the work-load of first instance judges: in 2007‑2008 a system of points for work-load shall be developed, which will enable to compare the work-loads of different courts and the time consumed for adjudication of cases.

2)         There is no evaluation of quality of work of judges and court officers.

3)         Court statistics is being jointly collected about the activities of all first and second instance courts, as all information is compiled into unified courts’ information system (in regard to courts’ information system see answer to question no 11). The Supreme Court collects its own statistics into its own information system.[21] Although the information system of Estonian courts was launched already in 2006, the judges are not satisfied with the functioning of the system. The information system can not be adjusted to meet the needs of administration of justice, because the information-technology development is financed through the budget of the executive.

13.       Does this evaluation include/envisage the evaluation of the quality of judicial decisions?

See the above reply. There is no strict system for evaluating the quality of judicial decisions.

In Estonia the quality of judicial decisions is evaluated by the use of indirect methods.

1)         In 2006 a department of analysis was set up at the Supreme Court, employing the analysts of administrative, criminal, civil and constitutional law; the topics of their research are determined by respective Chambers of the Supreme Court, taking into account the needs of the national administration of justice. The first results of the research performed by the group of analysts have earned a warm reception both in the development of training plans and in daily administration of justice; e.g. the reasons for annulment of judicial decisions have been analysed. The results of such analyses are made public on the webpage of the Supreme Court and all Estonian judges can access these. The purpose of the analysis is to contribute to the unification of judicial practice (uniform application of law).

2)         The yearly training plans for judges are drawn up bearing in mind the need to periodically organise judicial round-tables concerning topical issues of different branches of law, to discuss also issues of procedural law and to pool experience. These round-tables are chaired by judges of circuit courts, who are familiar with the main problems arising in the contested first instance judgments.

14.       If your country does evaluate the quality of judicial decisions by means of a specific system, could you specify the latter …

Not applicable.

15.       What are the advantages and disadvantages discussed in your country as far as the evaluation of quality of justice is concerned?

Such discussions are only just beginning. We hope that the CCJE opinion will give these discussions within the court system itself and with the executive a further push. For the very first time the Estonian judges discussed the introduction of the work-load points and the issues of financing of courts in February 2008, when the Court en banc (comprised of all Estonian judges) convened.[22]

The following are extracts of public speeches of the Chief Justice of the Supreme Court Mr Märt Rask in between 2005 and 2007, where he has touched upon the issue of quality of justice: “Judicial decisions are quality decisions when laws are applied uniformly throughout the state. […] The analysis of the content of the judicial decisions [that have entered into force] is necessary for the detection of deviating practice of application of law and for assisting in finding similar solutions. […] The decrease of the amount of appeals is an indicator of quality. […] Courts form legal policy through precise and uniform application of law. Clear and sound judicial practice is the measure of the quality of justice. The analysis of judicial practice helps to prepare the legal policy decisions of judges […]. A quality judgment means a dispute where there is no need for appeal, which is adjudicated as quickly as possible – taking into account the complexity of the matter ‑ , and it must be possible to calculate the amount of money the state has spent on such a judgment.[23]

16. In the opinion of the judiciary in your State, which factor could help to improve the quality of decisions?

The quality of judicial decisions and more generally the quality of justice is improved by

1)      sufficient and transparent financing of the court system,

2)      sufficiently qualified and remunerated support personnel,

3)      approximation of workload of judges and court houses, optimum structure of courts,

4)      judges’ possibility to specialise in a situation where appropriate training is guaranteed even though the legal system is changing and developing quickly,

5)      support services of high quality (IT, management issues, accessibility of law literature),

6) functioning of extra-judicial law enforcement agencies: the police, prosecutor’s office, bodies conducting extra-judicial proceedings (e.g. Environmental Inspectorate, Public Procurement Office),

7)      quality of legislation (involvement of judges’ representatives in e.g. drafting of new procedural laws),

8)      supervision over the quality of judicial training and the increase of finances spent on judicial training,

9)      language editing of judicial decisions (a qualified philologist employed in every court for language editing).

17.       Is a system of evaluation of quality of each of the following in force in your State:

n  professional performance of police?

No. The activities of the police are supervised by the Government of the Republic (Minister of Internal Affairs), the prosecutor’s office exercises supervision over the legality of police activities.

n  professional performance of public prosecution services?

No. Supervisory control over the prosecutor’s office is exercised by the Ministry of Justice.

n  professional performance of lawyers?

No. The observance of the requirements of legislation regulating the activities of lawyers and of professional ethics is monitored by the court of honour of the Bar Association; the court of honour examines disciplinary offences of lawyers and other matters placed within the competence of the court of honour by law.

n  enforcement of judgments?

No. In Estonia a bailiff is an independent person who holds an office in public law. The Ministry of Justice exercises supervision over the professional activities of bailiffs. The violations of the code of ethics of bailiffs are adjudicated by the court of honour of bailiffs.

n  efficiency of ministry of justice services in general?

No. The Minister of Justice as the head of the Ministry of Justice has political liability; he or she can be removed if the parliament expresses no confidence in the whole government or the minister.

n  quality of legislation?

Yes and no. The Government of the Republic has, by its regulation, established formal requirements to be observed upon drafting laws and regulations of the government or the ministers, as well as requirements to the explanatory letters of drafts and guidelines on how to analyse the effects of new laws or law amendments.[24] The Ministry of Justice is in charge of supervising that the draft laws and regulations meet these requirements.