Lay judges in Estonia's court system are involved only in the hearing of first-instance criminal cases in district courts. The aim is to view court proceedings primarily from a human, rather than a legal, perspective. In doing so, a lay judge has equal rights with a professional judge.

"Judges and lay judges have exactly the same rights. A lay judge is a person who participates in the hearing with you, asks questions in exactly the same way as you do as a judge and likewise takes part in the decision-making. All issues are reviewed with them one by one and their opinion is asked first. After that, the judge states their opinion. They have exactly the same voting power as the judge," said Merle Parts, a judge at Harju District Court.

"If we have a criminal case with three judges, they vote. There have been cases in history where two lay judges together have decided differently from the judge. However, that probably does not happen very often," said Chief Justice Villu Kõve of the Supreme Court.

There are currently nearly 360 lay judges in Estonia. They include both retirees and working people, such as Heli Viitak, who manages operations at a manufacturing company in her day job. She began serving as a lay judge in 2018, motivated by a desire to broaden her understanding of the judicial process.

"First my candidacy was submitted to the local government, where I was then selected," Viitak said.

Both Merle Parts and Heli Viitak say that their experiences working with other lay judges have so far been largely positive. At the same time, Parts noted that the participation of lay judges can also obstruct or harm the administration of justice — for example, if a lay judge fails to appear at a hearing or must withdraw from it. According to Parts, courts can only rely on a lay judge's sense of duty, as there is no penalty for obstructing judicial proceedings.

"It is understandable that a lay judge's health may fail or that they take a position that prohibits them from serving as a lay judge or that they wish to move abroad and have completely valid reasons to withdraw from a hearing. But current legislation does not allow us to immediately replace them with another person. Instead, we must start the proceedings from the beginning and that obstructs the administration of justice," Parts said.

According to Chief Justice Villu Kõve, the problems with lay judges begin with finding people who have the time for lengthy court proceedings or who meet the necessary requirements. For example, authorities in Virumaa have struggled to find people with sufficient Estonian language skills. Another major issue is the lack of even basic background checks.

"A few years ago we had a problem with one lay judge who disclosed information about court proceedings to participants in the case. Judges themselves undergo several months of vetting today: their finances are reviewed, their income is checked, their circle of acquaintances and all connections are examined. The Estonian Internal Security Service also assesses whether the person should be allowed to handle matters involving state secrets. But lay judges undergo no background checks at all. That is a problem. And in the current security situation, if we imagine sensitive criminal cases, it cannot be ruled out that people with security risks might end up among lay judges — people who may even have a specific interest in getting into such a position," Kõve said.

A draft bill from the Ministry of Justice therefore proposes abolishing the institution of lay judges in order to ensure a more professional approach to the administration of justice. Under the proposal, only professional judges would adjudicate cases in district courts.

"Whether to abolish the institution or not should be a very carefully considered and well-thought-out decision. Given the procedural law currently in force, I believe there is rather a need to abolish the institution," Parts said.

Andreas Kangur, a lecturer in criminal procedure at the University of Tartu, said in a written comment that only four or five countries in Europe do not use lay judges. Kangur acknowledged that the regulation governing lay judges has been neglected and mentioned the shortcomings highlighted by judges, but said that instead of abolishing lay judges, lawmakers should fix the problems in the legislation. Eliminating lay judges would produce only marginal financial savings and would make the process more convenient for professional lawyers, but would deprive the administration of justice of an additional source of legitimacy.

"I believe that in certain proceedings the work of lay judges could still be preserved. We have knowledge that is genuinely taken into account in this building (the court) and that is useful. This is precisely where we can apply our expertise — for example, economic knowledge," Viitak said.

According to Kõve, however, it is very rare for lay judges to end up in hearings where they can actually apply such expertise. In its current form, the institution of lay judges should be abolished and keeping it would require several reforms.

"That would require criminal proceedings to be significantly shorter so that people could participate for a reasonable period of time. The loss of their income would also have to be addressed, which would make the system significantly more expensive. So far we have not managed to achieve that anywhere and I do not see a jury system emerging either. In this situation, it has become a problem in our proceedings. I would say that today it should be ended. Perhaps we can return to it one day if we come up with something new," Kõve said.

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