T HE SUPREME COURT OF ESTONIA

Transcription

1 T HE SUPREME COURT OF ESTONIA 1

2 Grand Assembly Hall.

3 1 Table of Contents 1. Court System 2 2. Judges 7 3. The Supreme Court History Competence Composition Chambers Adminstrative Law, Civil and Criminal Chambers Ad hoc Committee Constitutional Review Chamber The Supreme Court en banc Other Duties Services Statistics 31 Lobby on the 2nd floor.

4 2 1. Court System The legislative foundation of the first Estonian court system was established by the Asutav Kogu (Constituent Assembly), and set forth in chapter IV of the Constitution (entitled On Courts ) that was adopted on 15 June Pursuant to that chapter justice in Estonia was administered by the courts with the Supreme Court as the highest court. In certain types of cases juries were allowed. The judges were either elected or appointed by the Supreme Court, and could be removed from office only by the courts. Later amendments to the Constitution vested the competence to appoint judges with the Head of State. Also, the Minister of Courts obtained the right to have a say in judicial appointments, and he acquired a right of supervision and control over the activities of the courts. After Estonia s annexation in 1940, the judicial system of independent Estonia ceased to function. On 28 June 1992, a new Constitution entered into force, pursuant to which justice is administered solely by the courts. The courts are independent in their activities and administer justice in accordance with the Constitution and the laws. The courts function in the name of the state and are administrative agencies of the state. No one has the right to interfere with the administration of justice. The Constitution does not provide for a definition of the judicial power. Nevertheless, it proceeds from the Constitution that the Estonian court system consists of county and city courts, administrative courts, circuit courts and the Supreme Court. Pursuant to the current Courts Act there are 14 county courts, 2 city courts, 4 administrative courts and 3 circuit courts. Under a proposed amendment there will remain 4 county courts and 2 administrative courts in Estonia as of 1 January The number of circuit courts will not be changed. The county and city courts are the courts of general competence (general courts). The county and city courts hear civil, criminal and misdemeanour matters and perform other acts where law confers such jurisdiction. Administrative courts have been set up in Estonia for the adjudication of disputes in public law, though the system is somewhat different than found in many other states. The administrative courts

5 3 function as separate courts only in the first instance court level. The circuit courts review administrative matters as courts of second instance and the Supreme Court as the court of last instance. In many countries, the administrative court system is entirely separate from the general court system at all levels. Specialised courts for adjudication of certain categories of cases may be established. Nevertheless, so far no other specialised courts, besides the administrative courts, have been set up in Estonia. The formation of emergency courts is prohibited. Courtroom.

6 4 The Estonian court system is characterised by a hierarchical structure. The courts of first instance include county, city and administrative courts. Circuit courts are the courts of second instance (courts of appeal) which review the decisions of county, city and administrative courts by way of appellate proceedings. The Supreme Court is the highest court in the state and reviews decisions by way of cassation proceedings. The Supreme Court is also the constitutional review court. In Estonia, all cases begin in the courts of first instance, irrespective of the gravity of offence, complexity of the civil matter or the position of the administrative agency, that issued the administrative legislation, within the hierarchy of state institutions. No case begins in a circuit court. The circuit courts are courts of appeal and review only the decisions of first instance courts. This is a rare structure of a court system. In many countries the more complex cases begin in the courts of second instance and, in certain cases, the highest court of the state adjudicates matters as a court of both first and last instance. Proceeding from the fact that proceedings begin in a county, city or administrative court, a participant in the proceedings has the possibility to appeal to a higher court twice: to appeal against a judgment of a first instance court in a circuit court and to appeal against a judgment of a circuit court in the Supreme Court. Cases may be adjudicated by judges sitting alone or in panels depending on the type of case. The nature of panels differs depending on the court level. In the first instance courts matters are adjudicated either by judges sitting alone or in panels. As a rule, administrative and civil matters are adjudicated by a judge sitting alone. Also, misdemeanour matters and minor offences are adjudicated by a judge sitting alone. In other cases where panels are used, these panels consist of professional judges or of one professional judge and lay judges. A professional judge together with lay judges hears certain civil and criminal matters. Nevertheless, it is only in the first instance courts that matters are adjudicated by judges sitting alone or together with lay judges. In the second instance courts and in the Supreme Court matters are adjudicated only in panels and only professional judges may be members of the panels of the court.

7 5 Stained glass windows.

8 6 Certain duties, not related to the administration of justice, have also been imposed on the courts. The county and city courts comprise land registry departments, registration departments and probation supervision departments, performing administrative functions. Land registry departments maintain a land register and marital property register. Registration departments maintain a commercial register, commercial pledge register and ship register. Probation supervision departments monitor the behaviour of those persons sentenced with probation and the performance of duties imposed on them. Courts of the first instance and courts of appeal are administered in cooperation between the Ministry of Justice and Council for Administration of Courts. The Council for Administration of Courts is comprised of 11 members, six of whom are judges. The courts perform court administration duties if so provided by law. The Supreme Court exercises its administration independently. The Minister of Justice has no right of command or disciplinary authority over the judges. The Minister of Justice cannot take important decisions concerning administration of courts without the consent of the Council for Administration of Courts. The courts of first instance and courts of appeal are financed through the budget of the Ministry of Justice, whereas when approving of the courts budgets the Ministry of Justice has to consider the opinion of the Council for Administration of Courts. The Supreme Court is financed directly from the state budget. The training of judges has been made a responsibility of a foundation, set up for this purpose, and a Training Council, where the judges have the decisive say.

9 7 2. Judges After Estonia regained its independence, there was an intensive period of judicial reform. This included reconstructing the courts and appointing judges for life. Judges of the first instance courts and courts of appeal are appointed to office by the President of the Republic, on the proposal of the Supreme Court en banc. Justices of the Supreme Court are appointed to office by the Riigikogu (Estonian parliament), on the proposal of the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court is appointed to office by the Riigikogu, on the proposal of the President of the Republic. The life tenure of judges means that judges have a guaranteed term of office until the obligatory retirement age. The maximum age of a judge is 67 years. The principle of life tenure does not exclude the possibility of leaving office before attaining 68 years of age. The Courts Act sets forth the circumstances in which judges may be released from their tenure. The principle of life tenure of judges is restricted by the possibility to release a judge from office against his or her will due to unsuitability for office. Yet, a judge may be released from office on this ground only within three years after appointment to office. Once a year, the chairmen of courts submit their opinion concerning judges of less than three years length of service employed in the corresponding courts. The issue of unsuitability for office of a judge may be raised by the judge s examination committee and by a person or body entitled to commence disciplinary proceedings. Decisions on unsuitability for office are made by the Supreme Court en banc. The release from office of judges must be differentiated from the removal of judges from office. The grounds for removal from office are conviction for a criminal offence or conviction of the commission of a disciplinary offence. Removal from office is the gravest disciplinary punishment, which has been imposed rarely. A judge may be removed from office only by a court decision. Judge s salary and additional remuneration for years of service are guarantees of judicial independence. The law provides for the amount

10 8 and the conditions of payment of judge s pension and judge s holiday as social guarantees of judges. While judges are independent, there are other limits to the permitted activities of judges. Judges may hold no other elected or appointed office except for those enumerated in law. Judges are only allowed to be employed for training and research. The aim of these restrictions is to avoid threats to the independence of judges. The duty of confidentiality and the duty of confidentiality of deliberations, imposed on judges, apply for an unspecified term and remain in force also after termination of the service relationship. The duty of confidentiality of discussions which take place at the time the decision is made is an absolute one. A judge may disclose information, which becomes known to him or her at a court session held in camera, in judicial proceedings or pre-trial procedure in criminal matters only with the permission of the Supreme Court en banc. The hearings of matters in all courts are public, and court judgments are pronounced publicly. This guarantees a possibility to assess the behaviour and impartiality of judges. A judge must render reasoned judgments. Review of the judgments of judges is exercised by other judges through the system of appeals. Supervision over the activities of judges is also exercised through disciplinary proceedings. In county and city courts, lay judges also may participate in the administration of justice. The requirements for lay judges are set out in the Courts Act. The candidates for lay judge are elected by local government councils and appointed by the committees for appointment of candidates for lay judge, which the courts comprise. Lay judges are appointed for four years and may not be appointed for more than two consecutive terms.

11 9 Courtroom.

12 10 Portraits of former members of the Supreme Court on the wall of Grand Assembly Hall.

13 11 3. The Supreme Court 3.1. History The highest court of the Republic of Estonia was founded by the Constituent Assembly by the Supreme Court Act, passed on 21 October 1919, and by the Constitution, adopted on 11 June The Constituent assembly elected the first members of the Supreme Court in October A member of the Constituent Assembly Mr Kaarel Parts was elected the Chief Justice of the court, Mr Paul Beniko, Mr Rein Koemets, Mr Jaan Lõo, Mr Hugo Reiman, Mr Martin Taevere and Mr Peeter Puusepp were elected members of the court. The Supreme Court of that time comprised 11 members. The Constituent Assembly declared Tartu as the seat of the Supreme Court. The first public session of the Supreme Court took place on 14 January 1920 in the assembly hall of Tartu Town Hall. Pursuant to law the Supreme Court was first and foremost a court of cassation. There were three departments in the court, the highest body was the court en banc. The Civil Department of the Supreme Court heard appeals in cassation against the judgments of National Court of Appeal (Kohtupalat) and appeals against judgments of Justice of the Peace Courts (rahukogud) as the courts of second instance. The Criminal Department was competent to hear appeals and protests in cassation against the judgments of National Court of Appeal and Justice of the Peace Courts in criminal matters. The department was also the highest military court. Cassation proceedings were allowed in all civil and criminal matters, restrictions were minimum. The Administrative Department of the Supreme Court was the highest administrative court. The Supreme Court was the first and the last court instance which reviewed complaints against the decisions, orders and failures to act of ministries and other higher administrative agencies. It was also possible to submit appeals for revision of and protests against the judgments of Justice of the Peace Courts and justices of the peace in administrative matters.

14 12 The following were within the competence of the Supreme Court en banc: court administration of the lower courts; appointment to and release from office of judge; unification of court practice. In the interest of guaranteeing uniform interpretation of law the Supreme Court en banc and the Departments could give binding interpretations of laws. These were published for general information in the Riigi Teataja (The State Gazette) and in law journal Õigus (The Law). The Supreme Court comprised a State Prosecutor s Office, headed by a prosecutor of the Supreme Court. The 1939 Amendment of the Constitution Act and the Constitution of 1938 placed the appointment to and release from office of judges within the competence of the Head of State. In 1935, during a centralisation of power, the Supreme Court was relocated to Tallinn. In 1940 the Soviet Union annexed the Republic of Estonia, which resulted in the liquidation of the Supreme Court. The activities of the Supreme Court were terminated as of 1 January 1941, by an order of the Peoples Commissioner of Justice of the Estonian Soviet Socialist Republic. The day before the Supreme Court en banc gathered for its last session, organisational in character. By that time several members of the Supreme Court had already been arrested. The foundations for the restoration of the activities of the Supreme Court were laid by the Constitution of the Republic of Estonia, adopted by a referendum held on 28 June The Constitution vested with the Supreme Court the functions of a court of cassation and of a court of constitutional review. Tartu became the seat of the Supreme Court once again. The first public session of the newly re-established Supreme Court took place on 27 May 1993, in the assembly hall of Tartu Town Hall. In the Chief Justice of the Supreme Court was Mr Rait Maruste. In the Chief Justice of the Supreme court was Mr Uno Lõhmus. As of 13 September 2004 the Chief Justice of the Supreme Court is Mr Märt Rask.

15 13 Bust of Mr Kaarel Parts ( ), Chief Justice of the Supreme Court from

16 Competence The Supreme Court is the highest court in the state. The Supreme Court is competent to: exercise constitutional review; review court rulings and judgments by way of cassation; correct court errors; perform other duties prescribed by law. Appeals to the Supreme Court may be filed by any person who is not satisfied with a judgment of a lower court, but the Supreme Court selects the appeals it accepts for hearing. The acceptance of matters is decided by a panel of at least three justices of the Supreme Court. A matter shall be accepted if at least one justice so requires. The principle of selection is not applied to constitutional review matters, which all are accepted. The Supreme Court hears appeals filed against judgments where a lower court has applied a provision of substantive law incorrectly or has materially violated a provision of procedural law. In the cases and pursuant to the procedure prescribed by law the Supreme Court also reviews judgments by way of review and correction of courts errors proceedings. A corner of an office of a justice.

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19 17 Session of the Supreme Court en banc.

20 Composition There are 19 justices in the Supreme Court. The activities of the court are directed and the court is represented by the Chief Justice, who is an ex officio chairman of the Supreme Court en banc and the chairman of the Constitutional Review Chamber. Every justice is a member of one of the Administrative Law, Civil or Criminal Chambers. In cases prescribed by law an ad hoc committee, composed of the members of different Chambers, reviews judgments and rulings. For the adjudication of constitutional review matters a Constitutional Review Chamber, consisting of 9 justices, has been set up. An Estonian citizen who has proficiency of the Estonian language at the advanced level, has fulfilled an accredited law curriculum of academic studies, is of high moral character, has the abilities and personal characteristics necessary for working as a judge, and who is an experienced and recognised lawyer, may run as a candidate for the position of justice of the Supreme Court. Justices of the Supreme Court are appointed to office by the Riigikogu on the proposal of the Chief Justice of the Supreme Court. The Chief Justice of the Supreme Court is appointed to office by the Riigikogu, on the proposal of the President of the Republic, for the term of 9 years. Upon assuming office, the justices of the Supreme Court take an oath before the Riigikogu. They may be removed from office only on the basis of a court judgment. Criminal charges may be brought against a justice of the Supreme Court during his or her term of office only on the proposal of the Chancellor of Justice, and with the consent of the majority of the membership of the Riigikogu. A justice may not be a member of a political party and may not be employed other than in the office of judge, except for teaching or research.

21 19 As of 1 December 2004 the justices of the Supreme Court are: Mr Märt Rask, Chief Justice Mr Tõnu Anton, Chairman of Administrative Law Chamber Mr Indrek Koolmeister, justice of the Administrative Law Chamber Mrs Julia Laffranque, justice of the Administrative Law Chamber Mr Jüri Põld, justice of the Administrative Law Chamber Mr Harri Salmann, justice of the Administrative Law Chamber Mr Ants Kull, Chairman of the Civil Chamber Mr Henn Jõks, justice of the Civil Chamber Mr Peeter Jerofejev, justice of the Civil Chamber Mr Villu Kõve, justice of the Civil Chamber Mrs Lea Laarmaa, justice of the Civil Chamber Mr Jaak Luik, justice of the Civil Chamber Mr Tambet Tampuu, justice of the Civil Chamber Mr Hannes Kiris, Chairman of the Criminal Chamber Mr Jüri Ilvest, justice of the Criminal Chamber Mr Ott Järvesaar, justice of the Criminal Chamber Mr Eerik Kergandberg, justice of the Criminal Chamber Mrs Lea Kivi, justice of the Criminal Chamber Mr Peeter Vaher, justice of the Criminal Chamber Grand Assembly Hall.

22 Chambers Administrative Law, Civil and Criminal Chambers In the Supreme Court justice is administered by Administrative Law, Civil, Criminal and Constitutional Review Chambers and the Supreme Court en banc; ad hoc chambers, consisting of members of different Chambers, are set up if necessary. Each justice of the Supreme Court belongs to one of the Administrative Law, Civil or Criminal Chambers. The activities of Chambers are directed by the chairmen. The Chairmen and members of the Chambers are appointed by the Supreme Court en banc. Cases are head by panels of at least three justices, within the terms prescribed by procedural law. The decision to conduct an oral or a written proceeding is taken by the panel. If the participants in the proceeding have not expressed their wish to participate in a hearing, a matter may be heard by way of a written proceeding and the court resorts to this more and more often. If differences of principal character arise upon application of law or if it is considered necessary to change an established opinion of a Chamber, the matter will be transferred to the full composition of the Chamber for a hearing. The full Chamber will not hear the matter and will refer it to an ad hoc committee, formed of the members of different Chambers, if it wishes to form an opinion different from that expressed in a judgment of some other Chamber of the Supreme Court or from the last judgment of an ad hoc committee. If adjudication of a matter requires constitutional review or if it is necessary to change the opinion of the Supreme Court en banc or an ad hoc committee or if it is important, for the interpretation of law, to adjudicate the matter by the Supreme Court en banc, the full Chamber shall refer the matter to the Supreme Court en banc for a hearing. Legal secretaries are directly involved in the administration of justice, as they participate in the preparation of cases for proceeding before Chambers and in drafting the rulings and judgments. Also, the legal secretaries have a duty to analyse and generalise court practice, to

23 21 Conference room.

24 22 create and guarantee prerequisites and conditions for the effective, independent and fair administration of justice. Justices participate in drafting opinions and proposals concerning draft laws and training programmes for judges. Legal secretaries must have fulfilled an accredited law curriculum of academic studies. Lobby on the 2nd floor Ad hoc Committee Ad hoc committees resolve differences of opinion concerning interpretation of laws, and competence disputes between the courts. Depending on the number of Chambers involved in a dispute, the ad hoc committee may be composed of representatives of either two or three Chambers. Each Chamber elects two justices to the ad hoc committee. The sessions of the ad hoc committee are convened and chaired by the Chief Justice of the Supreme Court. The judgments of ad hoc committee concerning interpretation of laws are binding on all Chambers until the ad hoc committee changes its opinion or until this is done by the Supreme Court en banc.

25 Constitutional Review Chamber Constitutional review matters are heard either by the Constitutional Review Chamber or by the Supreme Court en banc. The Constitutional Review Chamber is comprised of nine justices of the Supreme Court. The Chief Justice of the Supreme Court is the chairman of the Constitutional Review Chamber. Other eight members of the Chamber are appointed by the Supreme Court en banc. As a rule, the Constitutional Review Chamber hears matters in panels of five justices. Earlier it was possible to review the constitutionality of legislation of general application and international agreements. As of 2002 the competence of the Supreme Court has been extended. The Supreme Court as the court of constitutional review shall: review the constitutionality of legislation of general application and international agreements; adjudicate complaints filed against resolutions of the Riigikogu, the Board of the Riigikogu and the decisions of the President of the Republic; The Constitutional Review Chamber sits in the Grand Assembly Hall.

26 24 adjudicate requests for declaring a member of the Riigikogu, the President of the Republic, the Chancellor of Justice or the State Auditor incapable of performing his or her duties for an extended period; adjudicate requests for termination of the authority of a member of the Riigikogu; decide on giving a consent to the Chairman of the Riigikogu, acting as President of the Republic, to declare extraordinary elections to the Riigikogu or to refuse to proclaim laws; adjudicate requests for termination of the activities of a political party; resolve complaints and protests filed against the decisions and acts of electoral committees. Most common of the above are the petitions to review the constitutionality of legislation of general application. Such petitions may be submitted by the President of the Republic, Chancellor of Justice, local government councils and the courts. Before the new Constitutional Review Court Procedure Act entered into force in 2002 individuals could not petition the Supreme Court directly. At present individuals may address the Supreme Court with constitutional review matters only in very limited cases. An individual who is of the opinion that his or her rights have been violated, may file with the Supreme Court a complaint against the resolutions of the Riigikogu and the Board of the Riigikogu and the decisions of the President of the Republic, and a complaint or a protest against the decisions and acts of electoral committees. If necessary, the Constitutional Review Chamber may refer a matter to the Supreme Court en banc for a hearing. If the Supreme Court has received a petition to declare a member of the Riigikogu, the President of the Republic, the Chancellor of Justice or the State Auditor incapable of performing his or her duties for an extended period, to terminate the authority of a member of the Riigikogu or the activities of a political party, the matter shall only be heard by the Supreme Court en banc. Also, when constitutional review proceedings are initiated by the Administrative Law, Civil or Criminal Chamber or an ad hoc commit-

27 25 The building of the Supreme Court.

28 26 tee of the Supreme Court, the matter shall be heard by the Supreme Court en banc The Supreme Court en banc The Supreme Court en banc is the highest body of the Court, comprised of all 19 justices. The Supreme Court en banc is convened and chaired by the Chief Justice of the Supreme Court. The Supreme Court en banc has a quorum if at least eleven justices are present. The judgments of the Supreme Court en banc are adopted by the majority vote of the justices of the Supreme Court who are present. If the votes are divided equally, the Chief Justice of the Supreme Court shall cast the deciding vote. The Supreme Court en banc shall: review decisions on the bases provided by law; make a proposal to the President of the Republic to appoint a judge to office or release a judge from office; resolve appeals filed against the decisions of the judge s examination committee; resolve appeals filed against the decisions of the Disciplinary Chamber; decide the commencement of disciplinary proceedings against the Chief Justice of the Supreme Court, and notify the Riigikogu thereof; perform other duties arising from law and the internal rules of the Supreme Court. When the Supreme Court en banc is not reviewing court rulings or judgments, the Minister of Justice may participate in the hearings without the right to speak. The Chief Justice of the Supreme Court may also invite to the Supreme Court en banc other persons to whom the Supreme Court en banc may grant the right to speak. The judgments of the Supreme Court en banc are binding on all Chambers until the Supreme Court en banc changes its opinion.

29 Other Duties According to law the Supreme Court has the duty to guarantee the clerical support to the judge s examination committee. The judge s examination committee has ten members and is formed for five years. The judge s examination committee is comprised of two judges of the court of first instance elected by the Court en banc, two circuit court judges, two justices of the Supreme Court, one jurist designated by the council of the Law Faculty of the University of Tartu, a representative of the Ministry of Justice designated by the Minister of Justice, a sworn advocate designated by the leadership of the Bar Association and a public prosecutor designated by the Chief Public Prosecutor. In order to hold the examination, the chairman of the judge s examination committee forms a panel comprising of at least five members, three of whom shall be judges. Stairs between 1st and 2nd floor.

30 28 The main tasks of the judge s examination committee are the following: to assess the legal knowledge of the candidates for judicial office; to organize the judge s examination; to submit their opinion concerning suitability for office of judges of less than three years length of service. For the adjudication of disciplinary matters of judges, the Supreme Court comprises the Disciplinary Chamber which is comprised of five justices of the Supreme Court, five circuit court judges and five judges of courts of the first instance. The Supreme Court en banc appoints, for the term of three years, the chairman of the Disciplinary Chamber and other members of the Disciplinary Chamber who are justices of the Supreme Court. For the adjudication of a disciplinary matter of a judge, the chairman of the Disciplinary Chamber forms a five-member panel consisting of three members of the Disciplinary Chamber who are justices of the Supreme Court, one judge of a circuit court and one judge of a court of first instance. A judge may be punished for failure to perform only those duties which have been unambiguously prescribed by law. Disciplinary punishments are a reprimand, a fine in an amount of up to one month s salary, a reduction in salary, and removal from office. The following have the right to commence disciplinary proceedings: the chairman of a court, against the judges of the same court; the chairman of a circuit court, against judges of courts of first instance in his territorial jurisdiction; the Chief Justice of the Supreme Court and the Chancellor of Justice against all judges; the Supreme Court en banc against the Chief Justice of the Supreme Court.

31 29 Library.

32 Services As of 1 December 2004 there are 66 court officers and members of support stuff in the Supreme Court. The Supreme Court comprises five Services, the activities of which are directed by the Administrative Director of the Supreme Court. The tasks of the Services are the following: the Supreme Court Office organises the records management of the Supreme Court; the Legal Information Service distributes the information necessary for the administration of justice and enters data in the register of court decisions; the Information Technology Service maintains and develops the electronic data-bases and hardware and software of the Supreme Court; Management Service administers the assets in the possession of the Supreme Court and organises the security service; Accounting Service organises the keeping of the accounts and reporting of the Supreme Court. A safe in the Supreme Court Office.

33 Statistics The Supreme Court collects statistics concerning petitions and appeals submitted to and matters heard by the Supreme Court. As the Supreme Court acts as the court of cassation, not all petitions and appeals submitted are heard. A three-member panel of the Supreme Court justices decides on the acceptance of petitions and appeals for proceeding. In 2002 twenty one per cent of the petitions and appeals filed with the Supreme Court were granted leave to appeal, in 2003 the figure was twenty per cent. In criminal matters, until 1 July 2004, all appeals in matters where the court of appeal had either aggravated the punishment or changed the sanction, were heard. Also, the Supreme Court hears all petitions, complaints and protests submitted for constitutional review. Legal Information Service.

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35 Editorial board: Merle Heitur, Reelika Haljasmäe, Tanel Kask, Marelle Leppik Translator: Silva Soomets Language editor: Michael Gallagher Photography: Malev Toom, Meelis Lokk Design: Peeter Paasmäe Published by: ELMATAR Publishing House Cover: fragment of an engraving by Viive Kuks

36 36 The Supreme Court of Estonia 17 Lossi St, Tartu ESTONIA Tel Fax