Administrative Law Reform in Estonia: Legal Policy Choices and Their Implementation

Author:Kalle Merusk
Position:Professor of Administrative Law, University of Tartu

1. Legal policy choices - 2. Bases of administrative law reform - 2.1. Constitution - 2.2. Historical experience - 2.3. Judicial practice - 2.4. European Union law and experiences of other countries - 2.5. Administrative practice - 3. Results of administrative law reform and principles adopted - 3.1. Administrative Procedure Act - 3.2. Substitutive Enforcement and Penalty Payment Act - 3.3. State ... (see full summary)


Kalle Merusk

Professor of Administrative Law, University of Tartu

Administrative Law Reform in Estonia: Legal Policy Choices and Their Implementation

The years that have passed since the reestablishment of Estonia's independence are characterised by reforms of the legal system, preparation for them, and their implementation. All these activities have stemmed from a single underlying idea - to develop a legal order appropriate to a democratic state based on the rule of law. Reforms in public and private law as well as in penal law were finalised ten years after the entry into force of the Constitution of the Republic of Estonia. The same applies to administrative law. The Riigikogu has prepared and passed important legislation relating to the general part of administrative law, such as the Administrative Procedure Act, State Liability Act, Substitutive Enforcement and Penalty Payment Act, and Administrative Co-operation Act. The preparation of the administrative law reform was accompanied by the drafting of a new Code of Administrative Court Procedure, which has now entered into force and has a significant role in protecting the rights and freedoms of individuals and ensuring lawful administration.

These Acts have been in force for over two years, and we may already draw the first conclusions, assess their quality, and predict possible future developments. In order to grasp the essence of the administrative law reform, it would be appropriate to recall the ideas and sources of the reform, which have several lessons to teach for both today and tomorrow.

1. Legal policy choices

After the entry into force of the Constitution, which provided a framework for the development of the legal system but a relatively high degree of freedom of choice, it was necessary to make principled legal policy choices as regards the direction in which to move. In making these choices, an important role was played by a decision on consistency in the drafting of legislation, made by the Riigikogu on 1 December 1992, according to which the acts in force before 1940 have to be taken into account in the preparation of new draft acts1. The legislature thus formally acknowledged the fact that Estonia has been and continues to be a part of Continental European legal culture. Nevertheless, this decision too allowed a relatively high degree of freedom and, in some cases, was even disregarded. In drafting legislation for the special part of administrative law, the relevant laws of countries with the same general legal system were taken as the starting point, and these were incompatible with the Estonian legal system. When attempting to form generalisations, we may say that the first half of the nineties was characterised by an orientational and conceptual confusion in administrative law. One group of legislative drafters drew ideas from Germany, another from England, and yet another from the Scandinavian countries. As a result, the systematic structure of administrative law suffered considerably. In 1992, the Ministry of Justice ordered a study, 'Analysis and Prospects', conducted by a group of legal experts comprising Raul Narits, Eerik-JuhanTruuväli, JüriPõld, and KalleMerusk, which was submitted to the ministry at the end of 1993. The study, aimed at identifying the trends in the development of public law in the period following the entry into force of the Constitution, suggested that public law be modelled on the German and Austrian legal systems because of the similar legal culture. At the same time, the study emphasised that mechanical copying of the legal acts of other countries should be avoided. A legislative act that is efficient in one country need not be efficient in another - and in practice is indeed usually not, as the experience of other countries has demonstrated - because it fails to take due account of historical, economic, and cultural differences; traditions; etc. It is much more important to examine conceptual solutions and transpose them into a new milieu.

In the mid-nineties, it was concluded that without providing legal bases for the general part of administrative law, it would be impossible to ensure the systematic structure of administrative law and shape the development of public law as a whole. Besides conceptual confusion, the situation that evolved was also characterised by the general eclecticism of the legislation drafted. The Acts addressing the special part of administrative law were prepared in different ministries, proceeded from different foundations, were not uniform, etc. The situation was further complicated by the fact that European Union directives were often translated as acts. It must be noted that in very many cases, the protection of the rights of individuals in administrative proceedings was not included in the regulations. The established practices of the courts alleviated the problem to a certain extent. It may be said without any exaggeration that the administrative courts, particularly the Administrative Law Chamber of the Estonian Supreme Court, made a significant contribution to the further development and establishment of the democratic principles of administrative law in the administrative court context.

The confusion concerning regulations pertaining to administrative law also had an inhibiting effect on administrative capacities as a whole. In many cases, legislative acts were not compatible, they did not include enforcement mechanisms, etc. Administrative capacities that were lacking were also among the things pointed out in the progress reports of the European Commission2.

The situation that had evolved left a need for radical legal policy decisions. And they were made. The Ministry of Justice adopted the position that the fastest and most efficient method would be to transpose, with some amendments, the relevant acts of the Federal Republic of Germany, which would ensure a systematised body of administrative law based on accepted theory tested by practice. For that purpose, translations of the relevant acts were ordered as well as translation books, and twinning training was planned and carried out. Foreign experts prepared the relevant drafts. The implementation of this concept would have entailed the transposition of certain political decisions and significantly affected, among other things, the judicial system and administrative organisation as a whole. Several legal experts, administrative experts, and judicial officials did not agree to such an approach. Here we may list Prof. R. Narits, Prof. K. Merusk, Prof. I. Koolmeister, Prof. W. Drechsler, Associate Prof. R. Randmaa, T. Annus, and others. The wider community of jurists also joined the discussion. On 13 March 1998, a conference titled 'Theoretical Foundations of the Estonian Legal System' was held in Tallinn, where the mechanical transposition of German law into the Estonian legal order came under criticism. The conference proceeded from the thesis that Estonia indisputably belongs to the Continental European judicial area; however, this does not mean that Estonia should and could take on the legal frameworks of other countries. Legal reforms must, above all, take account of the Estonian context. Estonian jurists developed a prevailing position that Prof. R. Narits has characterised as follows: 'The primary foundation in developing a legal order is rational, since it proceeds from an assumption that each state identifies itself through very specific features. One of the most important of these is a national legal order.'3Here we should also mention an idea expressed by Estonian legal expert ArturTaska: 'Law must be understandable to everyone who deals with it. The content of law must rely on the legal consciousness of the people; it must be in conformity with people's sense of justice and value sets. Only then can law act as an intermediary between real life and justice.'4

On 27 November 1998, at a conference dedicated to the 80th anniversary of the Ministry of Justice, entitled 'The History, Present Situation, and Prospects of the Estonian Legal System', then Minister of Justice Paul Varul noted in his presentation, 'In a model of a legal system, a distinction must be made between private and public law. Everything that I just said about a clear model and a fixed system mainly concerns private law, because in the case of private law we can speak about a higher degree of unification, a possibility for greater harmonisation. As regards public law, it is quite clear that we must be more careful when taking on board the examples of other states, since the so-called model for public law is still determined by our Constitution. If the Constitution does not provide the clearest foundations and limits for the development of private law, leaving a great deal of freedom of choice, then public law, and particularly administrative and constitutional law, are determined as far as possible by the Constitution. We can speak about familiarising ourselves with the experience of other countries and learning from the mistakes of other countries; however, it is clear that the need for taking account of the peculiarities of the country in question is considerably more significant in the area of public law than in private law.'5

The end of the nineties witnessed a change in the goals of administrative law reform. It was found that the finished draft acts did not duly reflect the actual situation of Estonia and the specifications...

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