Protection of Persons´ Rights and Freedoms by Estonian Administrative Courts: Development and Key Problems
| Author | Kalle Merusk |
| Position | Professor of Constitutional and Administrative Law |
| Pages | 45-54 |
Page 45
On 19 February this year 80 years have passed from the beginning of administration of justice by administrative courts in Estonia. Conditionally these years can be divided into two big stages. The first stage covers the period from 1919 to 1940 and coincides with the first period of Estonian statehood. In 1940, in connection with the occupation and annexation of the Republic of Estonia by the Soviet Union, the jurisdiction of administrative courts was liquidated. Its restoration became possible only after the reestablishment of Estonia's independence. The Constitution adopted in 1992 foresaw the formation of administrative courts. Next year the Administrative Court Procedure Code was adopted and in autumn of the same year administrative courts began to operate. But actually their work began in the autumn of 1993. In February 1993 the parliament passed a qualitatively new Administrative Court Procedure Code that will come into force on 1 January 2000. Thus, Estonia will enter a new century with the new Administrative Court Procedure Code.
In 1919 the Administrative Court Procedure Act was passed which was substantially amended in 1929 and which served as the basis for the administration of justice in the field of administrative law1. There were no organisationally independent administrative courts established in Estonia. General courts and their departments administered justice in the field of administrative law. The administrative court system consisted of district courts (55), circuit courts (4) and the administrative law department of the Supreme Court.
A district court was the first-instance administrative court and apart from administrative cases it heard civil and criminal cases. Justice was administered in a district court by a single judge. Circuit courts operated within their jurisdiction also as the courts of first instance. Circuit courts were allowed to form departments according to the type of cases to be tried, thus including administrative law departments, but actually the latter were not established and a bench of three judges of civil departments resolved administrative disputes. The administrative law department of the Supreme Court was the highest administrative court thatPage 46operated as the final court of appeal for both district and circuit courts. The acts of the following persons and institutions fell within the competence of an administrative court:
(1) at the central state administration level - acts of ministers and ministries, governments and departments thereof and structural units equated with the latter two subdivisions;
(2) at the local state administration level - acts of county governments, structural units and members thereof, chief constables and others;
(3) at the local government level - acts of rural municipality, township and city governments and cultural governments of national minorities as well as structural units and members thereof.
Administrative courts were entitled to review both legislation (regulations, orders and resolutions) and the actual activity (including inactivity and delay) of an administration. The activities of the Government of the Republic were beyond the judicial control of administrative courts.
Complaints against the acts of rural municipality and township councils and governments as well as the departments and pertinent officials thereof fell within the competence of a district court.
A circuit court dealt with the complaints filed against the acts of city and county councils and cultural boards of national minorities as well as of city and county governments and cultural governments of national minorities and the departments and officials thereof.
The Supreme Court as the final court of appeal reviewed the cassation protests and complaints lodged against the decisions of district and circuit courts. The main task of these review proceedings was to control whether a first-instance court had properly and uniformly implemented the law in force. Review proceedings involved the elements of both cassation and appeal procedure2. In certain administrative cases (when dealing with ministerial regulations, etc.) the Supreme Court operated as the court of first instance.
An administrative court exercised relatively extensive powers while resolving the cases before it. A court might:
(1) reject the complaint;
(2) rescind the regulation, order or resolution in full or in part. A court might also require the issuance of a new administrative act instead of the rescinded one;
(3) order the pertinent administrative agency or official to perform a certain act if the law or regulation obliged it or him or her to perform the act. In order to safeguard the complainant's rights, a court might also require abstention from or abandonment of performing the act;
(4) remove officials from their office in the cases prescribed by law.
In summary it can be said that a relatively perfect jurisdictional administrative control functioned in that period. In the administrative law sphere, the judicial protection of rights and freedoms of natural as well as legal persons was guaranteed.
The Constitution of the Republic of Estonia adopted by the referendum of 29 June 1992 foresaw a three-stage court system. Pursuant to § 149 of the Constitution, county and city courts, and administrative courts are courts of first instance. Circuit courts review judgements of the first- instance courts by way of appeal proceedings. The Supreme Court is the highest court in the state that reviews court judgements by way of cassation3.
On 21 June 1993, the Administrative Court Procedure Code was adopted by the parliament and in autumn of the same year the administrative courts began to operate4.Pursuant to the Code, the administrative court system can be described as follows:
(1) separate administrative courts or administrative judges who serve in county or city courts constitute the first-instance administrative courts. At the present moment there are two separate administrative courts in Estonia - in Tallinn and in Tartu; there are 23 administrative judges working in county and city courts. The total number of administrative judges in the first-instance courts is 36;
(2) administrative chambers of circuit courts operate as the courts of second instance whereat, pursuant to the law, the circuit courts are not obliged to establish administrative chambers. In the case no administrative chamber has been formed, the civil chamber will review administrative cases. Out of the three circuit courts of Estonia (the Tallinn, Tartu and Viru Circuit Courts) only the Tallinn Circuit Court contains a separate administrative chamber.
The 1993 Administrative Court Procedure Code belongs to so-called transitional-period laws characterised by the then understandings and the legal regulation of which was based on the then objective situation and existing possibilities. Besides essential deficiencies the Code is of a comparatively low norm-technical level. In order to guarantee the protection of persons' rights and freedoms in the sphere of administrative action, the Administrative Law Chamber of the Supreme Court has tried to eliminate the drawbacks of the Code in its decisions by extending the administrative judicial protection of persons.
On 25 February 1999, the parliament adopted a new Administrative Court Procedure Code that will come into force on 1 January 20005. In the elaboration of the Code our current court practice, problems arisen in connection with court proceedings and court decisions, proposals made by administrative judges, the relevant procedure codes and court practice of other states (Germany, Austria, Switzerland, France and others) as well as treatments andPage 47positions presented in the pertinent legal-theoretical literature were taken into account. The requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms were also taken as the basis. Practicians and legal scholars of Germany, Austria and other states gave their expert opinions on the draft Code.
The part of the Code dealing with the organisation of administrative courts will come into force on 1 January 2001. The Code foresees the establishment of separate administrative courts of first instance. Proceeding from that, an administrative court may review more serious administrative cases collegially, i.e. with the participation of three judges. At the present moment, a single judge tries administrative cases in a court of first instance.
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