The Claim for Elimination of Unlawful Consequences and the Claim for Compensation for Damage under Estonian State Liability Law

• Author: Ene Andresen
• Position: LL. M., Assitant of Constitutional and Administrative Law, University of Tartu
• Pages: 168-179

Ene Andresen

LL. M., Assitant of Constitutional and Administrative Law, University of Tartu

The Claim for Elimination of Unlawful Consequences and the Claim for Compensation for Damage under Estonian State Liability Law

1. Introduction

Everyone's right to compensation for damage caused by unlawful action has been set forth in § 25 of the Constitution of the Republic of Estonia¹. This rule represents a constitutional guarantee behind Estonian state liability law. The present article examines the principles that have been established in the Estonian State Liability Act for remedying unlawful actions of the executive. Primary attention in so doing has been paid to the claim for elimination of the unlawful consequences of acts of administrative authorities. The goal of this article is to delimit the claim for elimination of unlawful consequences and the claim for compensation for damage. The article sets out to investigate whether the elimination of unlawful consequences serves as simply a variation of the claim for compensation for damage or, rather, as an independent state liability claim, and it explores how the issue has been addressed in Estonian state liability law.

If we think about the obligation to economise on public resources and the principle of effective legal protection, it is clear that such a restitution claim plays at least as important a part in state liability law as the claim for monetary compensation does. Also the European Court of Human Rights - although being an international court - considers it increasingly necessary, in the interests of effective legal protection of individuals, to demand of the member states violating the convention not only compensation for damage but also the factual elimination of unlawful consequences².

In Estonian court practice, the claim for elimination unlawful consequences has thus far been obviously overshadowed by the claim for monetary compensation for damage.

The procedural law problems of the claim for elimination of unlawful consequences cannot be discussed within the scope of this article.

2. The main features of Estonian state liability law

The principle of the rule of law obliges the state authority to act lawfully. This underlying principle of the Estonian legal order has been specified in § 3 (1) of the Estonian Constitution, according to which state authority shall be exercised solely pursuant to the Constitution and laws that are in conformity therewith. As may any other state authorities, the executive power may restrict persons' rights only if there is a legal basis for doing so and if the administrative activities are in accordance with a superior legal provision. The guarantee of persons' rights and freedoms is the duty of the legislative, executive, and judicial powers (Constitution §§ 13 (2) and 14). If a public authority nonetheless has violated a person's rights, the person has been guaranteed in § 15 (1) of the Constitution the right of recourse to the courts. The right to demand compensation has been provided in § 25 of the Estonian Constitution:

Everyone has the right to compensation for moral and material damage caused by the unlawful action of any person.

The right to compensation for damage has been regarded in the Estonian legal order as a fundamental right³. The Estonian Supreme Court has considered the implementation of Constitution § 25 feasible even without more specific legal regulation in place⁴.

To guarantee the lawfulness of administrative activities, restoration of lawful situation and the protection of persons' rights, the Estonian parliament, the Riigikogu,has adopted several important legal acts: the Administrative Procedure Act⁵, providing for the principles of administrative procedure and prerequisites for the lawfulness of administrative activities; the Substitutive Enforcement and Penalty Payment Act⁶, which governs the procedure for imposition of coercive measures; and the State Liability Act⁷, aimed at the protection and restoration of the rights violated in the performance of public duties and compensation for damage. All of these entered into force on 1 January 2002⁸.

The State Liability Act (hereinafter also 'SLA') is an act of general application in state liability law⁹. According to the legal definition of state liability, it comprises 'the bases of and procedure for the protection and restoration of rights violated upon the exercise of powers of a public authority and performance of other public duties and compensation for damage caused' (SLA § 1 (1)). The State Liability Act provides for - on different preconditions and to a different extent - the liability of the executive, legislative, and judicial powers for unlawful activities, and in certain cases also liability for the lawful activities of the executive.

The bulk of the State Liability Act is concerned with the liability of the executive power for unlawful acts caused upon performance of public duties. State liability claims related to the activities of the executive can be divided into primary and secondary claims. The State Liability Act has accorded a central - yet liability?limiting - role to the primary claims or primary legal remedies, since, as a rule, a person may not demand of a public authority compensation for damage caused to him (or elimination of unlawful consequences) when he has not tried to avoid the damage through timely contestation of the acts of the public authority. This principle has been provided in SLA § 7 (1)¹⁰. The Administrative Law Chamber of the Supreme Court has in its practice continually eased that strict requirement¹¹. The secondary requirements claims for the executive are thus generally addressed only when damage was has been caused to people person as a result of an unlawful act of the administration regardless of the implementation of the primary requirementsclaims. In such a case, a person may either demand either financial monetary compensation for the damage caused to him or elimination of the unlawful consequences of the administrative activity(s).

Estonian state liability law has used the model of direct state liability, according to which the state is liable to the injured party. The act of a natural person causing damage (e.g., an official) is ascribed to the public authority whose tasks the natural person was performing when the damage was caused. The natural person directly causing the damage is liable to the injured party personally only when this is prescribed by a specific law¹². After compensating the injured party for damage, the state may file a claim of recourse against the official but only if the official was at fault in causing the damage (SLA § 19). The liability of the state depends on the fault of the activities of the public authority only in the case of compensation for loss of income and non-proprietary damage (SLA §§ 13 (2) and 9 (1)).

The model of direct state liability is significant as regards the restoration of rights violated in the performance of public duties. As the state assumes direct liability to the injured party, the injured party may demand of the state the implementation of all lawful measures falling within the state's competence, including also elimination of unlawful consequences. Thus, the model of direct state liability creates more extensive legal protection options than does the model of indirect state liability¹³.

3. Delimitation of claim for elimination of unlawful consequences with regard to claim for compensation for damage

3.1. The need for delimitation of both claims

In private law, a claim for the compensation for damage is usually viewed as a single claim regardless of the different methods available for compensation for damage¹⁴. The State Liability Act mentions in the legal definition of state liability only the notion of 'compensation for damage' (SLA § 1 (1)), and the list of state liability claims includes as the only secondary claim the right of the injured party to request 'compensation for damage caused' (SLA § 2 (1) 5)). Chapter 3 of the State Liability Act is titled 'Compensation for Damage'. The section headings for the general provisions of the chapter most often mention only compensation for damage (e.g., § 8, 'Compensation for proprietary damage'; § 9, 'Compensation for non-proprietary damage'; § 10, 'Compensation for damage to third parties'; § 12, 'Person obligated to compensate for damage'). The only exceptions are § 11, titled 'Elimination of consequences', and § 13, titled 'Restriction of liability'. The sections governing procedural issues (§§ 17 and 18) provide only for the procedure for and terms of filing an application or action for compensation for damage.

If we examine a claim for compensation for damage more closely, it appears that the person whose rights the administrative authority has violated may demand compensation for both proprietary and non-proprietary damage...