No. 3




Judicial Independence and Judicial Administration

It was more than 200 years ago that the spiritual fathers of the Constitution of the United States of America Adams, Hamilton, etc. understood that judicial independence is a part of a much wider principle of separation of powers. Judicial administration must guarantee judicial independence.

In European countries the right of self-government of courts is gaining wider recognition. The International Association of Judges, too, has expressed the opinion that “where this is not ensured in other ways that are rooted in established and proven tradition, judicial administration and disciplinary action should be carried out by independent bodies, that include substantial judicial representation.” This article analyses the aspects of the relationship between judicial administration and judicial independence in Estonia. In the administrative sense the court system is split. The Supreme Court has been granted the right of self-government, whereas by the Government of the Republic Act of 1995 the courts of first and second instance alongside with prisons and the Prosecutor’s Office were included in the area of government of the Ministry of Justice. The primary principles of the court reform, prepared by the Ministry of Justice, emphasise that there is no need to reform judicial administration. Under the draft Courts Act, submitted to the parliament, the first and second instance courts will remain within the area of government of the Ministry of Justice and the right of the Minister of Justice to interfere with the activities of courts will increase. The Minister of Justice will have the right, sitting alone, to decide on the deduction of the budget and expenditure chargeable to the budget of courts during the budgetary year. Neither the limits of supervisory control nor the protection mechanisms in situations where judges feel that supervisory control has encroached judicial independence have been established. The author of the article finds that it would be necessary to analyse the conformity of such arrangement of judicial administration with Article 146 of the Constitution, which stipulates the following: “The courts shall be independent in their activities and shall administer justice in accordance with the Constitution and the laws.” The explanatory letter to the draft Courts Act sets forth the following two theses concerning the nature of judicial independence: 1) judicial independence must be ensured on the level of an individual judge, this means the ability of a judge to administer justice without being influenced as to the outcome of the cases; 2) the independence of a judge from a higher instance court is essential. The incorrectness of the latter thesis seems clear, yet traditionally the independence of courts has indeed been interpreted as the independence of a judge in the decision-making process. The wording of Article 146 of the Constitution allows to draw a conclusion that judicial independence also embraces the independence of a court as an institution. From this conclusion proceeds the right of judicial self-government, which, unfortunately, finds no recognition in the draft Courts Act.

Web-site of National Court of Estonia:

Full article in Estonian