NATO Individual Democratic Institutions Research Fellowships (1994-1996)

The research reports reproduced here are the responsibility of the individual authors. Their reproduction does not imply any form of official or unofficial endorsement by NATO. The reports are offered in unedited form, as presented by their authors, with a view to make their findings available to a wide audience. Western Judicial Systems and the Reform of the Estonian Judicial System Jaan Ginter [Back to Index]

3. Selection and Retention of the Judges All international standards on the independence of judiciary include some reference to the system of selection and retention of the judges. The most loose standards are in the U.N. Basic Principles, which require only that "[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives. In the selection of judges, there shall be no discrimination against a person on the grounds of race, colour, sex, religion, political or other opinion, national or social origin, property, birth or status, except that a requirement, that a candidate for judicial office must be a national of the country concerned, shall not be considered discriminatory" (18). The Montreal Declaration suggests that "[p]articipation in judicial appointments by the Executive or Legislature is consistent with judicial independence, so long as appointments of judges are made in consultation with members of the judiciary and the legal profession, or by a body in which members of the judiciary and the legal profession participate" (19).

The most restrictive are the IBA Standards, which declare that " (a) [p]articipation in judicial appointments and promotions by the Executive or Legislature is not inconsistent with judicial independence, provided that appointments and promotions of judges are vested in a judicial body, in which members of judiciary and the legal profession form a majority. (b) Appointments and promotions by a non-judicial body will not be considered inconsistent with judicial independence in countries where, by long historic and democratic tradition, judicial appointments and promotion operate satisfactorily" (20). Different countries utilize different systems for judicial appointments. Only a small number of countries entrust the power of judicial appointments to the judiciary (generally, a collegial body (judicial council) performs then the function) (21). With some exceptions most countries give this function over to the executive which carries it out on either a uniform method for all the judges or according to a split-system, whereby the system of appointments in the higher courts differ from that in lower courts. (22) Certain exception are the states of the United States from which some use partisan and non-partisan general elections for selection of judges. There have been a substantial amount of research on the topic of different methods of selection and retention of judges (23). The major factor for preferring one or another system have mostly been the intent of achieving different balances between the independence of judiciary and their accountability. Generally, empirical work, done on the subject, indicates that the method of selection has little, if any, effect on the overall quality of judges (24). E.g. a study by David A. Bowers and Jerold L. Waltman examined influence of judicial selection methods on the differences of public opinion and judges' opinions. They found that there is a significant correlation between the sentences for felonies against the person and whether the people of the jurisdiction supported more liberal or more conservative political views - the more conservative population the longer sentences. They went on to find out whether the correlation is closer in the jurisdictions in which judges are elected and discovered no significant effect of judicial selection method on the degree to which public preferences determine sentences (25). In Estonia also different systems of selection of judges have been used. During the first years of independence 1918 - 1920, the judges were appointed by the executive power. From 1920 to 1933 the judges of the highest court (Riigikohus) were elected by the legislature and all other judges were appointed by the Riigikohus. From 1933 to the Soviet occupation the judges were appointed by the President. During Soviet occupation the judges were officially elected on general elections in every five years, but in reality they were selected by the Communist Party officials. According to the Courts' Act of 1991 the Chief Justice of the Supreme Court (Riigikohus) is appointed by the legislature (Riigikogu), on the proposal of the President of the Republic, justices of the Supreme Court are appointed by the Riigikogu, on the proposal of the Chief Justice of the Supreme Court and other judges by the President on the proposal of the Supreme Court (26). There is no doubt that the Estonian method of selecting judges is in accord with the lenient U.N. Basic Principles. There is already some difficulties in reconciling the Estonian methods with the Montreal Declaration because the Chief Justice of the Riigikohus is appointed by the legislature without any consultation with the judiciary and all appointments are made without consultation with legal profession. These discrepancies may be explained away referring to the situation where there were no judges appointed by the independent Estonia who could be consulted with and that the legal profession was too small in number. Still, some question marks remain because now the judiciary is present and could be consulted and the legal profession is also growing in number. Much more difficult is to reconcile the Estonian methods with the IBA Standards requiring judicial appointments by a judicial body and allowing appointment by non-judicial body only in the case of long historic and democratic tradition. It is hard to say that the few years from 1933 to the Soviet occupation were enough to develop a long historic tradition. But the standard 3. (a) of the IBA Standards seems altogether not to be solidly founded. As we mentioned already earlier only a small minority of states are employing the method. Some states, which employed the method in 1982 (when the IBA Standards were adopted), have neglected the method later (e. g. Finland in 1993). And there are serious doubts that the method suggested by the standard may have some serious imperfections. No one can doubt that the appointment of judges by a judicial body is increasing the independence of the judiciary. The question is, whether there is some level of independence, achieving what, the extra independence of the judiciary will already do some harm. If the appointment of judges would be exclusive function of judiciary the judiciary will become more and more detached from the rest of the society and the opinions of the judiciary may start to differ substantially from the opinions of the rest of the society. More likely than not the differences may be in the favour of the judiciary, but the society is able to cope with only some level of such difference. If the difference will grow higher than the society is able to cope, the society will move to suppress the difference and in this case the pendulum will most likely move to the other edge and the independence of the judiciary may be significantly trespassed. Another issue of appointment is the period of tenure. The independence of judiciary is most highly guaranteed by appointing judges for life. Life tenure may be given two different interpretations. Either literally that a judge is appointed for life or that the appointment is until they reach a certain age. Nowadays most countries accord their judges life tenure in the latter interpretation. In some states the judges are selected for term of years.

There have been substantial critique of selection of judges for term of years. E. g. Shimon Shetreet argues that such method does not accord security of tenure, it opens the possibility of renewing an appointment of a "desirable" judge whilst letting that of an "undesirable" to elapse, without renewal (27). Among internationalstandards, dealing this issue, the IBA Standards are the most stringent requiring that "[j]udicial appointments should generally be for life, subject to removal and compulsory retirement, at an age fixed by law at the date of appointment" (28). Here we face the same problem of balancing independence and accountability (29). In Estonia judges are appointed for life, subject to compulsory retirement in five years after reaching the general retirement age (30). The problem is that the general retirement age has increased after the appointment of new judges. The Montreal Declaration insists that "[r]etirement age shall not be altered for judges in office without their consent" (31). According to the word of the Montreal Declaration the increasing of the retirement age is also possible only with consent of judges. But this solution would create unjustified inequality between judges and other employees. There is very little doubt that the intent of the mentioned clause is to guarantee judges' independence through increasing security of their tenure. Increasing the retirement age does not impair the security of judges' tenure. Hence the clause should not be read differently from the IBA Standards, which insist that "[r]etirement age shall not be reduced for existing judges" (32). So, we could conclude that increasing the retirement age should not be prohibited. But this does not solve all problems, because the general retirement age is not one for all ages, e.g. those women who were born in 1941 will generally retire when they reach 57 and those who were born in 1947 or later will generally retire when they reach 60 (the different retirement ages are established to smooth the shift from the retirement at 55 (men at 60) to 60 (men at 65)) (33). So the question arises, whether the judges who were born earlier should retire at a younger age than the judges born later. There is no rational explanation why the earlier born judges should retire at a younger age than the later born judges. But as the difference in the retirement ages of different judges is only an incidental result of interaction of two statutes and does not have any influence on the security of tenure it may be concluded that abovementioned question should be answered in affirmative, although it is difficult to characterize the situation where judges, appointed at the same time and having the same position, have different ages of mandatory retirement otherwise than peculiar. Footnotes The U.N. Basic Principles, Principle no. 3. The Montreal Declaration, 2.14. b) The IBA Standards, 3. (a), (b). Italy (consiglio superiore della magistratura); Portugal (Higher Council of Magistrates); Spain (General Council of Judicial Power); Finland (up to 1993 Supreme Court appointed district and municipal court judges), see Shimon Shetreet, op. cit. p. 624. See Shimon Shetreet, op. cit. p. 624. See e.g. Peter D, Webster, Selection and Retention of Judges: Is there One "Best" Method?, Florida State University Law Review, 1995, Issue no. 231, p. 1 - 42; Jona Goldsmith, Selection and Retention of Judges: Is Florida's Present System Still the Best Compromise?: Merit Selection: Current Status, Procedures, and Issues, in University of Miami Law Review, Fall, 1994, vol. 49, p. 1 - 79; Deborah Hardin Wagner, Selection and Retention of Judges: Is Florida's Present System Still the Best Compromise?: Ensuring Diverse Bench: Is Florida Up to the Task?, in University of Miami Law Review, Fall, 1994, vol. 49, p. 147 - 153. See generally Commission on Government Integrity, State of New York, Becoming a Judge: Report on the Failings of Judicial Elections in New York State, 1988, p. 7; Anthony Champagne, The Selection and Retention of Judges in Texas, Sw. L. J. (Special issue), May 1986, at 111. David A. Bower, Jerold L. Waltman, Are Elected Judges More in Tune with Public Opinion? A Look at Sentences for Rape, International Journal of Comparative and Applied Criminal Justice, Spring 1994, vol. 18, no. 1, p. 114 - 117. Riigi Teataja 1991, 38, 472, 16, 18, 20 and 24. Shimon Shetreet, op. cit., pp. 623-624. The IBA Standards, 22. (a). For an interesting discussion of the independence and accountability of judges related to the role of courts in society (the more judges are making policy the more accountability of judges is needed) see Peter D. Webster, op. cit., pp. 3 - 10. The Act on the Legal Status of Judges, 7, Sec. (1), (2). The Montreal Declaration, 2.22. The IBA Standards, 22. (b). The State Pensions Act of 1993 as amended in March 20, 1996, Riigi Teataja I 1993, 15, 256, 5.