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]

5. Transfer It is generally accepted that in certain cases transfer is tantamount to removal and that power of transferring judges without consent is inconsistent with judicial independence (44). E.g. in India, because of language barriers and a major difference between the various regions, transfer may amount to de facto removal (45). Hence, judges should not be transferred from one jurisdiction or function to another without their consent. This requirement is included both in the IBA Standards (46) and in the Montreal Declaration (47). The IBA Standards have somewhat more lenient wording indicating that the judge's consent for transfer is preferred. But the Montreal Declaration although generally denying any transfer without judge's consent accepts systems of regular rotation and specifically points out systems, "where a judge in his early years is transferred from post to post to enrich his judicial experience". The judicial independence may be substantially impaired even through a system of transfer with judge's consent. A remarkable example of such system is Japan (48). To exclude this opportunity, the abovementioned IBA Standard requires the power to transfer a judge from one court to another should be vested in judicial authority (49).

The Act on the Legal Status of the Judges is currently in full accord with the international standards. In Estonia a judge may be transferred to another court of the same level by the Riigikohus (the Supreme Court) only with judge's consent. But there are signs that the situation may at some point be changed drastically. According to the new draft Courts' Act, prepared by the Ministry of Justice, the power of transfer is already vested not in the judiciary but in the executive, to be precise, in the Minister of Justice. And in the text there is already no indication about the judge's consent. Hopefully it was only a silly mistake of some lowerstanding drafter. We have all grounds to believe it because after the clause was heavily criticized by the judiciary and liberal academics the Ministry of Justice has not insisted on the change of the system of judge's transfer. The other aspect that should also be discussed here is the use of "spare" judges. The Act on the Legal Status of the Judges allows to appoint judges who have no permanent jurisdiction and may be transferred from post to post by the Minister of Justice without the judge's consent (50). The security of tenure of these judges is substantially lower than that of regular judges. The international standards do not mention "spare" judges. For the similar functions, fulfilling temporary vacancies, tackling with temporarily increased caseloads etc., some other countries use part-time and temporary judges. The Montreal Declaration condemns use of temporary judges as inconsistent with judicial independence (51) but does not mention part-time judges. The IBA Standards are on this point more lenient, but nevertheless declare that "temporary judges should be avoided as far as possible except where there exists a long historic democratic tradition" (52). In Estonia we have not had a long tradition of "spare" judges. Hence, we can not refer to the IBA Standards to approve the use of "spare" judges. So long there have been no "spare" judges appointed. It seems to be wise not to start the new tradition of using "spare" judges and to eliminate the system of "spare" judges from the new draft Courts' Act altogether. There are other alternatives available to cope with the temporary vacancies and with temporarily increased caseloads. The temporary transfer should be operated in such manner that it would be possible to get judge's consent for the transfer. Footnotes

See Sharon Shetreet, op. cit., p. 608, 631. See J. Cottrell, The India Judges' Transfer Case, International and Comparative Law Quarterly, 1984, Vol. 33, p. 1032. The IBA Standards, 12. The Montreal Declaration, 2.18. See J. Mark Ramseyer and Frances McCall Rosenbluth, Japan's Political Marketplace, 1993. chs. 8 and 9. The Montreal Declaration is silent on the point. The Act on the Legal Status of the Judges, 9. The Montreal Declaration, 2.20. The IBA Standards, 23. (b).