Chief Justice of the Supreme Court: Estonia needs more outspoken judges

Chief Justice of the Supreme Court Villu Kõve.

PHOTO: Kristjan Teedema / Tartu Postimees

Chief Justice of the Supreme Court Villu Kõve receives Postimees in the temporary home of the Supreme Court on Tartu’s Veski street almost by himself. The desk in his tired-looking office holds a pile of criminal case files from the Supreme Court Civil Chamber Kõve used to run no more than a week ago.

Kõve admits that opening a new case file for the first time still sends his heart beating a little faster even after 17 years with the Supreme Court. He is a little saddened by the fact he is primarily looking at administrative duties as chief justice from now on. He is not short on ideas, however.

You were surprised when the president nominated you for chief justice. Why?

First of all, I’m not what you would call a career person. One’s goal in life cannot be to become the chief justice of the Supreme Court – it usually won’t happen if it is. These things are coincidences. It was the desire of the Supreme Court and the president to find the candidate from among judges before Riigikogu elections. We had our chamber chairmen. The president met with all of us. She did not highlight my person. When she finally made her choice, it was a surprise.

Few still remember how Urmas Reinsalu suggested then 32-year-old Villu Kõve become chief justice back in 2004. Why did it not happen then?

It was an idea by Reinsalu that appeared in an opinion piece once. It was not discussed beyond that. It was my second year with the Supreme Court. By today, I have been here for so long it is like a new challenge. That was the main reason I agreed.

You have seen the Supreme Court from the inside for 17 years. Has it been independent in that time?

I think so. We have such personalities here, 19 justices. We almost always argue over major cases.

The vast majority of cases we hear are of no interest to politicians. There have been a few exceptions: ESM (European Stability Mechanism dispute in 2012 – ed.), local government mergers, but even then, the debates were open and fair. I do not recall a single phone call looking for a particular decision in those 17 years.

Things like the VEB fund, local government mergers and ESM are still talked about. How often have you, at the pinnacle of administration of justice, been forced to admit that while there is an infringement, it needs to be suffered for the common good?

Major constitutional things – I would not include the VEB fund ruling here as it is not in the same category – all have to do with worldview. Justices of the Supreme Court have theirs, and it shows when things come to a vote. ESM was a good example of that as votes were split half and half, whereas the dividing line also followed generations.

While a judge needs to have a measure of statesmanship, we cannot have a single person halt the entire country. Striking a balance – that is what we do here.

What do the times call for today: should the chief justice be a vocal public debate participant or should they address the organization from the inside?

Who knows for sure…

It will become clear after the elections?

Indeed. I do not feel our court system needs thorough reform. However, there are plenty of things that require an evolutionary approach: how to find good people willing to work as judges. It is clear that the courts need to be more visible in the media when they are attacked. That is when we need to be out in the open and explain matters.

The seriousness of this situation will become clear after elections. Politically charged attacks typically concern criminal procedure. When I met with Riigikogu groups, their concerns were mostly for criminal cases.

Let us not beat about the bush: you were asked why Edgar Savisaar was let off for health reasons so easily.

What baffles me about politicians is when they point fingers at the court for making use of legislation they themselves have passed. It seems peculiar to blame the court for implementing legislation. Why did you introduce the act in the first place? Politicians should not distance themselves in this manner.

Should the provision be changed?

Hard to say. I trust my colleagues. If they have deliberated this matter and found that it is possible for a person to litigate themselves to death, I suppose that is the case.

There is a political party in Estonia than wants elections and fixed terms for judges. Your predecessor Priit Pikamäe said he leaves with a heavy heart. How about yours?

There are concerns. Looking at Poland or Hungary, every judge is worried as to whence those kinds of radical tendencies. Talking about Estonia, I cannot say how serious this (Conservative People’s Party – O. K.) reform really is. What would it mean to have “elective judges” – who would elect them?

The people!

Yes, but how? Will they convene and say that because they do not like particular judges, they need to be removed? We would soon be left with no one. While we would like to have courts, wouldn’t we? I do not think there is a well-thought-out analysis or desire behind it.

The judiciary is looking at a change of generation. You will have to find several Supreme Court justices quite soon. How difficult is it to find them?

We have three vacancies at present and have already started the interview process. A candidate for the position of a Supreme Court judge needs to be a renowned jurist. I would like to promote bringing in at least some people from outside the system – lawyers and professors. We cannot afford to buy the best people: our social guarantees do not compare to those of top lawyers.

Lower tier courts have competitions twice a year. We have used assistant judges, tried to find lawyers and prosecutors. I do not think it is right to only make judges out of court officials. I feel we need more judges with a personality. People who are bolder, more outspoken, as opposed to people sporting a mentality of pushing papers.

You have said that the wage of a Supreme Court judge by purchasing power today equals that of a first instance court judge in 2007. How much should judges be paid?

I did not come up with that myself, it was our accountant who said it first. It is a difficult question to answer because we likely cannot say a judge is not paid well. I would imagine policemen and kindergarten teachers would frown on that.

Even more serious than the level of salaries was the effect of the decision to abolish special pensions. It used to motivate lawyers and prosecutors to come and work as judges ten years before retirement. There is no such motivation today. An idea of contributing a little extra to judges’ second pillar pension has been discussed. Those are the kinds of things I will have to address as there is no money train headed for the courts as things stand.

On average, Estonia has the second fastest court system in Europe, while people still feel it takes too long for cases to pass through all three instances.

There are some principles we must not surrender. One is that the court must hear both sides in each and every dispute. We cannot have the court order damages based on an application on the same day. The other side’s statements or applications inevitably take time to process.

Legislative drafting has largely been reactive in recent years. The minister has a bill for every problem. Many believe the system is mature enough and the Riigikogu should cool its heels. Which side to you support?

The legislator should always think twice. If a problem has been solved in court, it is not necessary to immediately write the result into law. Every detail added to the law creates new disputes. We could have fewer laws that are better thought-out.