Ivo Pilving, Tartu Court of Appeal
1. Proportion and number of delaying cases (on 30.06.2009)
All pending cases in administrative courts of first instance: 946
Pending cases in first instance administrative courts waiting more than one year: 200 (21.1%)
All pending administrative law cases in courts of appeal: 393
Pending cases in courts of appeal, registered in first instance administrative courts more than 2 years ago: 143 (36.4%)
There are no statistics, how many administrative law cases are pending in Supreme Court registered in first instance more than 2 years ago.
2. The number of cases
|- first instance||3003 (12-5%)||2733 ( 8.9%)||2542 ( 6.9%)||2471 ( 2.8%)||2437 ( 1.8%)|
|- courts of appeal||1250 (+31.6%)||1060 ( 15.2%)||1076 (+1.5%)||1032 ( 4.1%)||1047 (+1.6%)|
|- supreme court|
|* applications for leave||635||567||566||745||716|
|* solved cases||85||85||97||93||93|
3. Lack of resources
3.1. Number of administrative judges
|Number of administrative judges||Number of registered cases (2008)|
|First instance administrative courts||25||2736|
|Courts of appeal||12||1161|
|- applications for leave||716|
|- leaves granted||139|
3.2. Increasing the number of judges
The increasing of the number of the judges is very improbable. Instead, there is a strong political will and even a draft law to reduce the whole number of judges in Estonia from 244 (current) to 200 by the year 2015.
3.3. Support staff
In administrative courts of first instance every judge has a secretary and there are 18 judicial assistants pro 25 judges. There is some need for more assistants in first instance courts (e.g. one assistant pro judge).
In courts of appeal there are one secretary pro 4 judges and one judicial assistant pro 2 judges. This proportion is adequate.
3.4. Non-judicial matters
There would be a possibility to delegate some simple judicial matters to assistants in first instance courts if there were some more assistants (see 3.3).
4. Geographical distribution
There are 2 first instance administrative courts in Estonia – in Tallinn and in Tartu (with court locations in 4 cities all together); their workflow in 2008 was as follows :
|Cases registered||Number of Judges||Cases pro judge|
|Tallinn Administrative Court||1593||16||99,6|
|Tartu Administrative Court||1143||9||127|
However, many cases in Tallinn Administrative Court can be more complex than the average cases in Tartu, because Tallinn Administrative Court solves most of the applications against central government and ministries. Thus, the geographical distribution of the workflow is more or less equal.
5. The organisation of the courts
5.1. Singe and collegial judges
In most cases there is a single judge deciding in first instance administrative courts, but in complicated cases the judge can give the case to a chamber composed of 3 judges. The judges use this possibility in very few cases (only 2 or 3 pro year), admittedly for efficiency reasons. Whereas there are three instances in Estonian administrative court procedure, the deciding as a singe judge is not regarded as a danger to the independency.
In the courts of appeal all cases are decided in chambers composed of 3 judges and in the Supreme Court in chambers comprising at least 3 judges.
5.2. Specialisation of courts and judges
There are no specialised administrative courts in Estonia, but due to the location of the central government bodies, some specific types of cases (e.g. competition law) are solved solely in the Tallinn Administrative Court.
At the Tallinn Administrative Court the judges are specialised. Indeed, this measure has accelerated the procedures.
6. Inadequate procedural rules
6.1. Procedural rules creating delays – time to answer
In administrative court cases the normal time-limit to answer (one month) cannot be considered as unfounded.
Some delays are caused by the parties misusing the procedural rules (late presentation of evidences etc). There are certain weapons against such practices, but they are not always effective. The Civil Procedure Code, witch is also applicable in Administrative Courts, sometimes causes unreasonable bureaucracy in administrative courts. Because of the inquisitory principle (the administrative court is ex officio responsible for collecting the evidences) the detailed rules on the adversary civil procedure are not always appropriate in administrative cases.
On the other hand, the Administrative Courts may refrain from applying the rules of the civil procedure if they don’t comply with the principles of the administrative court procedure. This legal framework helps to accelerate the procedure in administrative courts, but it also causes legal uncertainty for the participants as well as for the court.
In 2008 the President of the Estonian Supreme Court formed a working group of judges and experts with the task to evaluate the arrangement of all kinds of judicial proceedings in the country. Main remarks of the working group concerning the Code of the Administrative Procedure were the following:
– possibilities to held proceedings in written form should be extended;
– rules concerning the state legal aid should be more flexible;
– technical problems concerning the electronic communication with the courts should be solved.
According to the report of the working group, the main problem concerning the procedural rules in Estonia is that these rules are changed too often and too rapidly.
6.2. Oral hearings
Ca 2/3 of the judgements are based on the oral proceedings (in must be mentioned that only 50% cases registered reach the judgement; others are dismissed or ended on the procedural grounds with the court order in written procedure). As for the sufficiency of possibilities of holding written procedures, see 6.1. Estonia has not been criticized by the ECHR for not holding oral hearings. Both the examination of the evidence and discussing the questions of law are carried out in oral hearings.
6.3. Witnesses and experts
Generally, the encouragement of the using of the witnesses and experts in Estonian administrative Court Proceedings is currently not necessary. In Estonia, the witnesses and the experts are heard by the courts as well as by the administrative authorities; the courts can refer to the witnesses and experts heard in the course of preceding administrative procedure. The administrative authorities are using both civil servants as experts and independent experts. As a rule, the administration has to bear the costs of the experts in pre-court administrative procedure, whereas in administrative court procedure the party losing the case has to accept the costs. But there are several exceptional rulings, where the parties of the administrative procedure have to compensate the costs of the experts (e.g. by applying for building licences). In some cases the state legal aid can cover the costs of the expertise.
6.4. Leave to appeal
There is no leave required in courts of appeal in Estonian administrative court procedure, but the court of appeal can dismiss the appeal of the plaintiff without the oral hearing, if the plaintiff manifestly lacked standing before the administrative court. I think such possibility to dismiss the hearing of the case would by necessary in all cases, where the appeal is manifestly unfounded.
6.5. Restrictions of judicial review
a) Between administrative decision and first instance administrative court, main restrictions of the judicial review are:
– the time-limit for filing an action – 30 days as a rule;
– rules concerning the standing in administrative courts – only persons whose rights or freedoms are violated by the administration can file an action;
– principles concerning the ripeness of the case – the possibilities to claim before the final administrative decision are restricted;
– requirement to file an administrative objection before filing a an action in court – in some cases, e.g. actions against administrations of the prisons;
– requirement to pay the state fee.
b) Parties have the right to appeal against a judgment of an administrative court to a circuit court if the administrative court has applied a provision of substantive law incorrectly, evaluated evidence incorrectly or materially violated a provision of court procedure. The only serious restrictions thereby are:
– the time limit – 30 days as a rule;
– state fee.
6.6. Changes in procedural rules
See 6.1. Particularly, more clarity is needed as regards the question which rules of civil procedure are relevant in administrative court procedure.
7.1. Goals set up by the government
According to the Code of the Administrative Procedure, the administrative case ought to be solved in reasonable time. No concrete period for proceedings is regulated by the laws. But the Ministry of Justice – organising amongst others the administrative courts – has set up the goal solve the administrative court cases in first instance during one year. For administrative authorities there are many concrete time limits laid down in legal acts– one month is a rule in many sectors of the public administration in simple cases.
7.2. Time limit rules
We have very few concrete time limit rules concerning the length of the administrative court procedure in Estonia: e.g. elections and referendum laws and law concerning the public meetings. The custody of mentally ill persons and children is decided by the civil courts, there are no time limit rules concerning those cases.
7.3 Violation of time limits
There are no special sanctions against violations of time limit rules. Theoretically, the disciplinary procedure against a judge can be initiated in serious cases.
8. System of remuneration
See 11 to 13.
9. President of the court
9.1. Responsibility of the president
The president is responsible for the orderly procedures in the court, thereunder for the solving of the cases in reasonable time. First, he or she has to observe the statistical data concerning the length of the proceedings and study the complaints of the parties whose cases are delaying. Then, he has to ascertain the causes of the delay and decide what can be done to accelerate the procedure and how to avoid delays in the future. He can particularly rearrange the work of the court registry, but he cannot give orders to a judge on how he should solve the procedural problems. The informal discussion of the causes of the delay with the judge or members of a chamber is the most effective way in most cases. There are some ideas to regulate such practices to some degree. The president cannot order a judge to decide some court cases as priority cases. For serious cases see 9.2 and 9.4 as well.
9.2. Removing the cases
The distribution of the cases among the judges falls in the competence of the general assembly of the court. The president cannot remove the case from a judge, but he can make a proposal to do so to the general assembly. Delays can be and have been reasons to decide so.
9.3. Interference with the independence
I think the removing the cases by the general assembly instead of the president of the court helps to avoid interferences with the independence of the judge.
9.4. Measures against delays
If the judge has intentionally or negligently violated his official duties, he can be held responsible in disciplinary procedure. The prosecution is not possible.
10. Legal remedies
Today, there are legal remedies only against procedural decisions hindering or complicating the quick solving of the case. The court of appeal or Supreme Court can overrule such decisions. A simple failure to decide is not challengeable at the time being, but a need for a respective regulation is recognized.
11. System of remuneration
The salaries of the judges as well of the other higher state officials are fixed by the law on the base of the average income in the country. The salary of the young first instant judge is the preceding year’s average income in the country multiplied with 4 (with 4.5 in courts of appeal and 5.5 in the Supreme Court). In 2008, the average monthly salary in Estonia was ca € 825. This system is highly controversial and a draft law regulating the salaries of higher officials is under discussion in the parliament. The aim of the draft law is to avoid too quick growth of the salaries.
12. Economical crisis
In December 2008 the salaries of all higher officials (judges also) were “frozen” by the law at the level of the year 2008. In February 2009 the judges’ salary, but not that of the higher officials of the executive power, was reduced by 7%. The Association of Estonian Judges and the Estonian Legal Chancellor (Ombudsman) expressed serious doubts concerning this law. In June 2009 the judges’ salary was reduced by one more percent and the salary of other higher officials by 8%.
13. Bonus system
So far the bonus system and individual salaries of the judges have been regarded as incompatible with the judicial independence, but the Ministry of Justice has just made a proposal to pay bonuses to the presidents of the “effective” courts. I share the opinion that such system cannot be developed in a fair and objective way; i.e. this would be dangerous to the independence.