Judicial Review of Administrative Discretion and the Application of Undefined Legal Concepts in the Estonian Legal System
| Author | Kalle Merusk |
| Pages | 50-57 |
Kalle Merusk
Judicial Review of Administrative Discretion and the Application of Undefined Legal Concepts in the Estonian Legal System
When establishing the legal bases for judicial review of administrative discretion, it is important to approach this subject from the perspective of the Constitution of the Republic of Estonia and the norms regulating judicial procedure.
The Constitution has established the principle of legal reservation, pursuant to which an administration is entitled to take action only if the law empowers it to do so. In other words, the administration may do only what is permitted by law. Thus, this principle requires the existence of a legal basis for administrative activities. The principle of legal reservation is derived from constitutional norms as well as principles. In this context, subsection 3 (1) of the Constitution, which establishes that the powers of the state are exercised solely pursuant to the Constitution and the laws which are in conformity therewith is important. Hence, the executive power of the state must act only on the basis of the Constitution and the laws which are in conformity therewith. Another pertinent constitutional provision in this respect is section 87, according to subsections (3), (6) and (9) of which, the Government of the Republic administers the implementation of laws, resolutions of the Riigikogu1 and legislation of the President of the Republic; issues regulations and orders on the basis of and for the implementation of law; and performs other duties which the Constitution and the laws vest in the Government of the Republic. Pursuant to subsection 94 (2) of the Constitution, a minister directs a ministry, manages issues within its area of government, issues regulations and directives on the basis of and for the implementation of law, and performs other duties assigned to him or her on the bases of and pursuant to procedure provided by law. All these provisions state clearly that an administration acts on the basis of law, issues legislation on the basis of law, performs duties assigned to it by law and administers the implementation of law on the basis of law.
The principle of legal reservation is also derived from the constitutional principles of democracy and a society based on the rule of law. The principle of democracy is expressed in sections 1 and 10 of the Constitution. Pursuant to subsection 1 (1), Estonia is an independent and sovereign democratic republic wherein the supreme power of the state is vested in the people. Section 10 stipulates that the rights, freedoms and duties set out in Chapter II of the Constitution entitled "Fundamental Rights, Freedoms and Duties" do not preclude other rights, freedoms and duties which arise from the spirit of the Constitution or are in accordance therewith, and conform to the principles of human dignity and of a state based on social justice, democracy and the rule of law.
The principle of democracy means, first and foremost, that only a parliament that has been elected by the people and thus so legitimised, is justified to pass important decisions which establish regulation of general importance for its citizens. This is achieved through reservation, which also means that an administration is only allowed to act on the basis of powers assigned to it by law and not on the basis of self-imposed law or absolute power.
The principle of a society based on the rule of law presupposes that relations between the state and its citizens are regulated by statutory laws, which not only stipulate pertinent procedures of administration, but also make these comprehensible and predictable for the citizens.
One of the essential arguments for the principle of legal reservation is the fundamental rights of the Constitution which protect the freedoms and property of citizens, and which may be restricted only in accordance with the Constitution. The general principle of legal reservation cannot be equated to the principle of "constitutional legal reservation", although these are closely connected, as both the principle of democracy and that of a society based on the rule of law require that limits on fundamental rights be determined by laws passed by parliament.
This analysis serves as a basis for the claim that administrative discretion in the present legal order cannot be unbound by law. Administrative discretion can be performed only on the basis of a statutory law, or in other words, discretion is to be exercised solely on the basis of powers derived from law. If discretion can be exercised only on the basis of legal powers, this discretion is also a legal issue, that is, an issue concerning the enforcement of law. As well, if discretion is a legal issue, it can also be the subject of objective judicial review.
Another essential argument for judicial review of administrative discretion is subsection 15 (1) of the Constitution, pursuant to which, everyone whose rights and freedoms are violated has a right of recourse to the courts. Everyone has the right, while his or her case is before the court, to petition for any relevant law, other legislation or act to be declared unconstitutional. This is an unrestricted fundamental right, not subject to legal reservation, that is, this fundamental right cannot be restricted by law. Thus, the Constitution has given everyone the right of recourse to the courts if his or her rights and freedoms are violated. Consequently, this holds true also to situations where an administration violates a person's rights and freedoms when exercising its discretion or applying undefined legal concepts. The Constitution does not establish any restrictions in any sphere. Section 15 of the Constitution corresponds to the principle of a society based on the rule of law, which presumes a wide range of protection for persons. The European Convention for the Protection of Human Rights and Fundamental Freedoms,2 to which Estonia has acceded, is also of great importance with regard to this issue. The first part of Article 6 of the Convention states: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law..." When commenting on this provision, K. M. Meessen stated: "Emphasising civil rights rather than rights under public law should not be understood as excluding proceedings before administrative courts from the purview of Article 6. A careful reading of the provision reveals that what matters is not just the nature of a right but its "determination". Not only civil courts but administrative courts, too, have occasion to "determine" the scope of civil rights."3 R. Maruste, the Chief Justice of the Supreme Court of Estonia, holds an analogous view4.
Subsection 15 (2) of the Constitution is essential from the perspective of judicial review of administrative discretion. Pursuant to this provision, the courts must observe the Constitution and declare unconstitutional any law, other legislation or act which violates the rights and freedoms provided by the Constitution or which is otherwise in conflict with the Constitution. In this context, it is important to stress that this provision embraces not only constitutional norms but also constitutional principles.
On the basis of the foregoing, the following conclusions can be drawn:
1) subsection 15 (1) of the Constitution gives everyone an unrestricted right of recourse to the courts if his or her rights and freedoms are violated;
2) subsection 15 (1) of the Constitution corresponds to Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms;5 and
3) subsection 15 (2) of the Constitution has "supplied" administrative courts with the legal tools necessary for judicial review of the legality of discretion exercised by an administration. This is also true for the application of undefined legal concepts.
Thus, pursuant to the Constitution, administrative discretion and the application of undefined legal concepts are subject to judicial review.
In connection with judicial review of administrative discretion, the questions of what position has been taken with regard to the norms of administrative court procedure and, what jurisdiction and limits are provided for review of administrative activities and acts arise. The provisions of the Administrative Court Procedure Code6 pertaining to competence and procedure do not expressly discuss review of administrative discretion. In order to answer these questions, it is necessary to analyse sections 3, 5, 9 and 20 of the Code.
Section 3 establishes the competence of an administrative court. Pursuant to this provision, an administrative court is competent to:
1) resolve complaints and protests filed against the legislation or acts of an executive body of state power, a local government and an autonomous ethnic minority cultural agency or their officials referred to in subsection 4 (2) of the Code;
2) resolve complaints and protests filed against the decisions of election committees in the cases stipulated by law;
3) resolve disputes arising from administrative agreements;
4) hear matters concerning administrative offences pursuant to the procedure provided for in the Administrative Offences Code; and
5) resolve other matters which by law are placed within the competence of the administrative courts.
It is apparent from section 3, that all...
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