Paavo Randma
Chair of the Disciplinary Chamber, Justice of the Supreme Court
Last year, two cases of offences were heard by the Disciplinary Chamber. In both cases, the disciplinary charges were brought against the judge of the district court. In one case, the prosecution was brought by a chair of the district court, in the other by the Chief Justice of the Supreme Court. In both cases, the judge was also convicted. Neither of the legal disputes reached the Supreme Court en banc, i.e. they entered into force pursuant to subsection 97(4) of the Courts Act (CA) upon the expiry of the appeal period. It must therefore be acknowledged that several of the positions expressed by the Chamber have not received the ‘final approval’ of the court en banc. This is a fact that needs to be borne in mind regarding the following highlights.
Decision No 9-13/24-4 of the Disciplinary Chamber of 5 March 2025
The case in question is complex in several respects, in terms of the circumstances in which it arises, its scope and the seriousness of the allegations, and the legal consequences applied by the Chamber, which, in the author’s opinion, does not seem to be in line with the gravity of the violations identified.
More specifically, the case concerned a disciplinary matter arising from a criminal charge brought against a judge under subsection 209(2(4)) – subsection 25(4), subsection 344(1), subsection 345(1), subsection 294(2(1), (2)) and subsection 1571(2) of the Penal Code. On 2 July 2024, after the decision of the circuit court had entered into force, in which the judge was acquitted of all the charges brought against them, the Chief Justice of the Supreme Court filed a disciplinary charge against the judge based on the findings of the court proceedings. It is also pertinent to note that clear indications of a possible disciplinary offense were also seen by both court instances that examined the criminal charges. For example, the district court wrote that although there was no crime involved, the judge seemed to have blurred the line between what conduct is ethically acceptable for a judge to engage in and what is not, to which the circuit court added that although the judge did not commit a criminal offense, the ethicality of such conduct was correctly raised as an issue.
Acts alleged against the judge
The acts identified by the district and circuit courts in the criminal proceedings that subsequently led to disciplinary charges could be summarised into two categories.
The first category is acts concerning the relationship with the two trustees in bankruptcy, which could be characterised as an extremely strong friendship involving, among other things, very close family interactions. This in turn led to allegations that (a) the judge, despite very close private ties, consistently involved the bankruptcy trustees in question in the proceedings the judge was presiding over and (b) the judge did not withdraw from the proceedings in which the two trustees were participating. The judge also took the opportunity to buy a mobile phone without paying VAT with the help of a bankruptcy trustee, saving 50 euros.
The second set of allegations concerned acts that could be characterised as providing legal aid services and participating in their provision. As the judge’s family members were also involved in the legal field, the judge took advantage of their access to the Court Information System (KIS) to search for the necessary case law. In three cases, the judge forwarded court documents to their family members, which were then used to provide legal services; in one case, a court document forwarded in this way also contained the health data of a third party. There were also three proven cases where the judge provided legal aid services on the side of their judicial office, asking for and receiving financial remuneration for it.
Some procedural observations on this case
Perhaps three aspects of this case deserve to be highlighted. First, the Chamber had to resolve the issue of whether information obtained by means of covert operations (as a result of secret wiretapping) in the course of criminal proceedings could be admissible as evidence in disciplinary proceedings. In this specific case, the Chamber answered in the affirmative.
The Disciplinary Chamber relied on the fact that the use of information gathered by means of covert operations in the Estonian Bar Association’s disciplinary proceedings, if this information had previously been presented in criminal proceedings and had been assessed and verified there, was considered acceptable by the Administrative Chamber of the Supreme Court.[1] However, this is subject to the additional clause that in such cases there must be an overriding public interest in using covert information in a way that is different from the original purpose for which it was collected, and a legal basis for doing so.[2] The Chamber confirmed the existence of both of these conditions.
Public interest in a fair and independent administration of justice does not need to be overly justified. The office of judge carries extensive power, and society’s trust in the court is also based on the judge’s impeccable conduct both inside and outside the court. The power conferred on judges and the trust placed in them therefore require appropriate means of holding judges accountable for their conduct.[3] The use of covert information in disciplinary proceedings against civil servants has also been accepted by the European Court of Human Rights, referring to the high moral standard required of law enforcement authorities.[4]
In a systematic interpretation of the law, the Chamber subsequently took the view that there is a legal basis for the use of covert information in disciplinary proceedings against judges. First, the Chamber referred to the second sentence of subsection 88(3) of the CA, according to which the imposition of a disciplinary sanction in addition to a criminal sanction for the same act is not excluded. The Chamber did not consider it reasonable that the Disciplinary Chamber should have a smaller evidence base than in criminal proceedings when assessing the same act. As the Supreme Court en banc has stated, the disciplinary proceedings of judges have a weighty purpose to ensure an important self-purifying function of the judicial system as a whole.[5] The disciplinary proceedings must also be complete and objective, and the provisions of the second sentence of subsection 88(3) of the CA would often be impossible to achieve if the Chamber had to rely only on the data reflected in the decision of the criminal court. It would also create an illogical situation in which the use and extent of the information obtained by a covert operation in disciplinary proceedings would depend largely on chance, namely whether a criminal court has used a detail identified by a covert operation in a judgment, has used it only partially or not at all. There is also a risk that evidence may be assessed in a fragmented way and in isolation from its context. A contrary approach would also ignore the fact that a number of facts which have no evidentiary significance in criminal proceedings and which are therefore unlikely to be dealt with in a decision may be of decisive importance in a disciplinary offense (e.g. the misconduct of a judge is presumably not something that would require any substantive analysis in criminal proceedings to determine the judge’s possible culpability).
Secondly, the Chamber saw a legal basis for the use of surveillance information in disciplinary proceedings in subsection 12612(3(6)) and subsection 206(4) of the Code of Criminal Procedure (CCP), interpreting them in conjunction. The first of these authorises the use of the information collected by the covert operation when deciding the hiring of a person in the cases provided for by law. In essence, this means permission to use the covert information to assess suitability for employment under certain specific conditions. There is no logical explanation as to why reliance on similar information should be excluded in the event that such circumstances should arise about an individual later, during the course of service. The Administrative Law Chamber of the Supreme Court has also interpreted the Act in this way, noting that if the special Act allows the use of information obtained by a covert operation when deciding whether to hire a person, it follows that the information may also be used in the case of an official in the service. The aim of the Act is to ensure that unsuitable persons are not hired, and it must therefore be possible to use the covert information available on a person while they are in the service if there are doubts as to their suitability, in particular where the seriousness of the acts of which the official is suspected could lead to their dismissal from office.[6] Based on subsection 206 (4) of the Code of Criminal Procedure, it can be verified whether the circumstances revealed in the course of criminal proceedings, including during covert operations, give grounds to suspect that a person with certain specific preconditions is no longer suitable for the job. In particular, this provision provides that a copy of the order terminating the criminal proceedings may be sent, under the subordination procedure, to the authority concerned who decides whether to initiate misdemeanour or disciplinary proceedings. Since the order referred to alone is not useful for a standard case, it was the legislator’s intention to allow for a transition from criminal proceedings to disciplinary proceedings, with the right to add the criminal case materials to the order if the competent person so wishes.[7] Subsection 91(3) of the CA gives the initiator of disciplinary proceedings a broad right to collect evidence necessary for the adjudication of disciplinary proceedings,[8] including evidence obtained in criminal proceedings. The Chamber pointed out that the Chief Justice of the Supreme Court had also requested the evidence in the criminal case to be produced in accordance with this understanding. According to the opinion of the Chamber, in the application of subsection 206 (4) of the Code of Criminal Procedure it makes no difference whether the criminal proceedings are terminated without the matter being sent to court or whether they follow the termination of criminal proceedings or another decision (acquittal or conviction) in court proceedings. Therefore, the Chamber did not see any contradiction with subsection 12612 (3) of the Code of Criminal Procedure and there were no obstacles to the use of the information lawfully collected by the covert operation in criminal proceedings as evidence in disciplinary proceedings. The judge was guaranteed fair and just proceedings and the opportunity to defend themself[9], including explaining and commenting on the records of the covert operation, both in the criminal proceedings and before the Disciplinary Chamber.
Secondly, the Chamber addressed the question of the time limits within which relevant evidence may be taken in the context of the determination of the charge. Can they come from a period outside the time frame of the acts alleged in the charges? To this, the Chamber also replied in the affirmative – the time frame of the alleged acts described in the charges does not concern the body of evidence under investigation. In assessing conduct that occurred at a particular time, evidence can and must be sought from before and after that time, i.e. the Chamber has the power to refer to conduct, relationships, conversations, etc. that pre-date and post-date the disciplinary charge. Also in the jurisprudence of offense proceedings, it is well established that courts are entitled to find, inter alia, pre- and post-act facts that confirm or refute the existence of the circumstances described in the charges, whether or not they are expressly referred to in the charges.[10] The Chamber saw no reason to depart from this approach in disciplinary proceedings.
As a third procedural issue, the Chamber had to deal with a situation in which the judge had failed to respond to several points of the charges – both in writing and orally at the Disciplinary Chamber hearing – by simply bypassing them. Since the procedure before the Disciplinary Chamber is investigative, does this also mean that the Chamber has to put itself in the role of a lawyer and, on its own initiative, start looking for facts in the body of evidence that would justify the alleged conduct? The Chamber answered this question in the negative. In the view of the Chamber, the presumption must be that the judge, who is undoubtedly a legal professional and a person with a high level of legal knowledge, is sufficiently competent to put forward, if any, appropriate defences to the allegations made in the disciplinary charges. In other words, it is not incumbent upon the Chamber to go beyond the scope of the defence arguments put forward and, on its own initiative, to seek out possible additional defence arguments or hypothetical justifications in order to confirm or refute them. If there is no objection at all to the allegation in the charge, the role of the Chamber is essentially limited to checking whether the general substantive and procedural requirements are met – whether the act described in the charge meets the elements of a disciplinary offense and whether it has not expired.
Substantive assessment
On the basis of a more than substantial body of evidence, the Chamber found that the allegations made against the judge were confirmed and that they met the elements of a disciplinary offense.
a) Unacceptable intertwining of work and private life
First of all, the Chamber found that using an acquaintance to evade tax and buying a mobile phone without paying VAT was not in line with the professional ethics of a judge. Subsection 70(2) of the CA requires that a judge conduct themselves impeccably also outside their official duties and refrain from acts that are detrimental to the reputation of the court. According to section 8 of the Code of Ethics, judges must be exemplary both in their obedience to the law and adherence to the rule of law. By optimising their costs in the way described, the judge committed an act of misconduct within the meaning of the second sentence of subsection 90(2) of the CA.
However, it can be assumed that from the perspective of practical life, the question of greater importance than the previous one is: at what point does it become legally reprehensible and reproachable as a disciplinary offense when personal interactions and friendships and professional activities intertwine and run in parallel? At what point does it become problematic when it becomes apparent that the lawyer appearing in court is an extremely close friend of the judge adjudicating a particular legal dispute?
First of all, the Chamber had to clarify that the question is not whether such a friendship has a substantive effect on the work of the judge; there need not be any real bias or partiality. A judge must not allow a situation to arise in which their impartiality towards the parties to the proceedings may be called into question by external observation. In disciplinary proceedings, it is a question of making an external assessment of relationships that have developed over a long period of time, since justice must not only be fair and just, but must also look it. In disciplinary proceedings, the question to be answered is whether, in the circumstances found, the judge should have avoided a situation which, even on a purely hypothetical and external observation, could give rise to suspicion of favouritism and, in the worst case, possible bias (section 23 of the Code of Ethics). The decision points out that the purpose of the regulation on the withdrawal of a judge is also, among other things, to avoid the appearance of bias. The appearance of independence of the administration of justice is undermined if, on external observation and after an objective assessment of all the circumstances, there remains a reasonable and serious possibility that the judge may not be entirely objective in resolving a legal issue.
When examining the case, the Chamber noted that one factor that might give rise to such a doubt is generally recognised to be friendship between the judge and a party to the proceedings. Obviously, this does not mean that any acquaintance or friendship between a judge and a party to the proceedings precludes their simultaneous presence in court. Given the small size of Estonia and the relatively close interaction between the legal community, setting such a condition would be unreasonable or even impossible. However, if the friendship and interaction in question is long-standing, close and completely trusting, and involves the families of the parties to a significant extent, the situation is different. The Chamber acknowledged that no general rule can be established in this respect. The circumstances of each individual case must be taken into account in order to decide whether the close relationship and/or friendship between the judge and the party to the proceedings has crossed a line which is no longer compatible with the external image of the independence of the administration of justice. The Chamber found that in this case the threshold had undeniably been exceeded; the evidence supporting this was plentiful and more than telling. The interaction and communication between them was so long-lasting, close and trusting that the judge should have perceived and acknowledged that, on external observation, they did not leave the impression of a fully objective and independent judge by far. As a result, the judge should have had to adjust their professional conduct, namely by not involving the bankruptcy trustees in question in bankruptcy proceedings under the judge’s supervision or by recusing themself from these proceedings (section 25 of the Code of Ethics, subsection 23(7) of the Code of Civil Procedure (CCP)). Failure to comply with this requirement is wrongful and inappropriate performance of official duties within the meaning of the first sentence of subsection 87(2) of the CA.
b) Provision of legal aid services
In terms of substantive law, the question of whether it is compatible with professional ethics to forward court decisions obtained from the KIS to family members so that they can use them in their daily work was not problematic. The materials of the covert investigation also showed that the judge understood that their actions were prohibited. Such conduct violates the obligation to withhold information not subject to publication, as provided for in subsection 70(3) of the CA and section 55 of the Civil Service Act. In the opinion of the Chamber, the systematic conduct of the judge was considered as wrongful and inappropriate performance of official duties within the meaning of subsection 87(2(2)) second sentence of the CA (a one-off such misconduct may thus not necessarily exceed the threshold for disciplinary offense, depending, of course, on the circumstances of the particular case).
It was also proved that the judge provided legal aid services for a fee. The Chamber considered it necessary to stress that this conduct is the most serious and most damaging to the reputation of the administration of justice of the set of allegations contained in the charges. Inevitably, the judge’s behaviour created or reinforced the impression that it was possible to buy legal aid services from the judicial system. The evidence clearly showed how the judge was repeatedly, actively and directly involved in the provision of legal services. With the active involvement of the judge, a number of legal documents were prepared, after which a situation arose where the judge’s colleagues in the district court adjudicated procedural documents in legal disputes that had been prepared with the considerable involvement of their colleague. The judge used their own court e-mail address to provide this ‘extra service’, and meetings with clients to hand over documents were held by the court building on several occasions. Under pressure of a large body of evidence, the Chamber had to acknowledge that, in essence, there was a ‘collective provision of legal services’ by the judge’s family, in which the accused played a definite and significant role, and according to the evidence examined, the financial reward for this also reached the judge directly.
In the view of the Chamber, it was clear that the above constituted wrongful inappropriate performance of official duties on the part of the judge. The judge essentially provided legal services within the meaning of subsection 40(1) of the Bar Association Act, which considers legal counselling as well as preparing a document and performing other legal operations on behalf of a person to be legal services. The evidence confirmed that the judge went into direct and deliberate breach of the restrictions of their office established in subsection 147(3) of the Constitution and subsection 49(1) of the CA.
It may also have created or enabled the impression that such a service could be purchased from the judiciary, in particular in a situation where a judge sends documents from their work e-mail address with instructions on how to forward them to other e-mail addresses in the judiciary. Similarly, the image of the independence and objectivity of the judiciary was damaged by the fact that meetings and handovers of documents were arranged in front of the courthouse in order to provide a prohibited service, while also mentioning the judge’s ‘real job’. The evidence examined clearly demonstrated to the Chamber the highly reprehensible complacency and confidence with which the side work expressly prohibited by law was carried out, and how professional and private interests were unacceptably mixed for the judge.
Sanction
The Chamber found that the nature, variety and seriousness of the offenses identified and the damage caused by the judge’s conduct to the reputation of the independence of the judicial system were significant. The Chamber also found the judge to be highly culpable. The revelation of such acts unequivocally undermines public confidence in the judiciary, and to a large extent undoes years of work by many colleagues in emphasising the dignity of the judiciary. It also had to be said that the judge refrained from admitting their guilt. On several occasions, the Chamber was forced to note, regrettably, that the judge had made deliberate false statements both in criminal proceedings and before the Disciplinary Chamber.
Notwithstanding the above, the Chamber still considered it possible to apply a reduction of the salary as a sanction in this case, albeit to the maximum possible amount (section 89 CA). Among other things, the Chamber took into account criminal proceedings that lasted several years and resulted in the acquittal of the judge. Despite everything, the Chamber also believed the judge’s assurance, in the motives of the decision, that they had substantially corrected their behaviour as a result of the criminal proceedings and that the acts alleged in the indictment would not be repeated in the future. However, the Chamber also considered it necessary to emphasise that the supervision of the performance of the duties of a judge, as provided for in the first sentence of subsection 45(1) of the CA, is not merely a right of the chair of the court, but a statutory obligation. In a situation where a judge working in a court under their authority has been found to have committed such serious professional misconduct, the chair of the court must be particularly clear about their role in this regard.
It must be admitted that, in the light of the facts and offences found, the author of the article questions the legal consequences applied by the Chamber. It is indeed difficult to find justifications here.
Decision No 9-13/25-1 of the Disciplinary Chamber of 1 December 2025
The case in question concerned a complaint against a judge for having disregarded the second sentence of subsection 6(1) of the CA in three civil cases pending before them, according to which a judge must carry out their duties within a reasonable time, taking into account the time limits prescribed by law (also section 15 of the Code of Ethics and section 2 of the Code of Civil Procedure). In one case, the judge also failed to comply with the requirements of subsections 452(4) and (5) of the Code of Civil Procedure, according to which the judgment must be pronounced no later than 40 days after the last hearing or the expiry of the time limit for written proceedings and the parties to the proceedings must be informed of any change in the time for public announcement of the judgment. The judge did not comply with these procedural rules.
The fact that the reasonable procedural time was objectively violated in these three cases was not denied by the judge (e.g. in one case the proceedings were ongoing for the sixth year, in the other, the proceedings were continuing for the fourth year); in light of this acceptance, the Chamber did not consider it necessary to dwell further on this issue. The Chamber reiterated its earlier position that in such cases the burden of proof reverses and it is for the judge themselves to justify due to which circumstances beyond their control the requirement of a reasonable time for proceedings has not wrongfully been violated in this case – whether due to the exceptional nature of the case (e.g. a particularly large number of witnesses) or the legal complexity, consistent and skilful (possibly coordinated) obstruction by one or more of the parties to the proceedings, the need to apply to the Court of Justice of the European Union for a preliminary ruling, the extremely heavy workload of the judge compared to their colleagues, health reasons, etc. In other words, in such a case, circumstances that have led to a time expenditure that appears unreasonable to an objective external observer should be mentioned. The judge did not mention any such relevant circumstances and the Chamber found that the judge had acted wrongfully within the meaning of subsection 87(2) of the CA.
Perhaps the only point worth highlighting in this case is the question of the order in which the legal disputes brought before the court are to be resolved, especially where, as in the present case, the actions are brought by the same plaintiff. The Chamber recognised that cases brought before the court do not necessarily have to be resolved in the chronological order in which they were filed. Some legal disputes have been prioritised by the legislator, with specific procedural deadlines. However, it cannot be ruled out that among the legal disputes concerning one person, some are clearly more weighty than others. In this case too, it is justified to deviate from the principle of resolving claims or complaints in the order in which they are received. However, the Chamber stressed that departing from such a principle requires a clear negotiation with the party(ies) to the dispute, in the present case in particular with the plaintiff. The judge did not do this. In the case at hand, the situation therefore arose where the judge arbitrarily ranked the importance of the legal disputes, casting some of them aside and leaving the plaintiff (and also the defendant) completely unaware of the progress of the proceedings.
The Chamber did not consider the judge’s culpability to be great considering the totality of the circumstances, pointing out that the court’s work organisation was also to some extent to blame for the immediate overload of the (junior) judge, who only took up their post in 2020. At the same time, the Chamber acknowledged the above-average quality of the judge’s rulings, which is why the Chamber considered that a reprimand was sufficient.
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[1] RKHKo 07.10.2021, 3-19-467/28, p 22.
[2] RKHKo 08.04.2015, 3-3-1-9-15, p 17.
[3] P. Pikamäe, K. Leichter (eds.). Courts Act. Annotated edition. Tallinn: Root 2018, section 87, comm 1.
[4] ECHR 18.01.2022, 14833/18, Adomaitis vs. Lithuania, p 87.
[5] RKÜKo 11.11.2024, 3-24-2036/10, p 38.
[6] RKHKo 30.04.2014, 3-16-2498/30, p 18.
[7] E. Kergandberg, P. Pikamäe (comp.). Code of Criminal Procedure. Annotated edition. Tallinn: Juura 2012, § 206, comm 7.
[8] See also RKÜKo 11.11.2024, 3-24-2036/10, p 13.
[9] RKÜKo 11.11.2024, 3-24-2036/10, p 12.
[10] See e.g. RKKKo 18.12.2024, 1-22-3897/47, p 15; RKKKo 12.01.2021, 1-17-11182/234, p 20.