The Present State and Development Trends of Estonian Administrative Law
After the restoration of independence on 20 August 1991, the establishment of an independent Estonian legal system also commenced. Its basis and outline were set out in the Constitution *1 adopted by the referendum of 28 June 1992. According to the Constitution, the system of bodies of central state power is based on the principle of a parliamentary state and parliamentarism. Legislative power is vested in a unicameral parliament, the Riigikogu. The head of state is the President of the Republic. Executive power is exercised by the Government of the Republic and justice is administered only by the courts which are independent in their activities and administer justice in accordance with the Constitution and the laws. The legislative, executive and judicial powers are based, according to the Constitution, on the principle of separate and balanced powers. Besides the above, § 10 of the Constitution also provides the principle of a state based on social justice, democracy, and the rule of law. The given constitutional principles have been and continue to be the basis for the formation of Estonian administrative law.
The most essential aspect in the development of administrative law is that administrative law, like the Estonian legal system as a whole, has integrated into the legal system of continental Europe, and has become based on the recognised legal principles of Europe. The Estonian legal system belonged to the legal system of continental Europe until 1940 when the bond was broken as a result of tragic events. According to principles of the legal system of continental Europe, positive law is divided into public and private law in Estonia as well, with administrative law restored to its traditional place in public law. As it is well known, the Soviet legal system did not differentiate between public and private law. In the Soviet legal system, administrative courts were not recognised and, consequently, neither was administrative procedure law. Administrative procedure law was considered a part of administrative law, primarily with respect to the implementation of administrative liability.
In 1993, the Administrative Court Procedure Code *2 was adopted by the Riigikogu, and the administrative court system was implemented. Administrative procedure law, as an independent branch of law, was formed on the basis of this Code. This is of the utmost importance for ensuring the public rights of individuals and the legality of executive power. According to the Administrative Court Procedure Code, anyone who finds that his or her rights have been violated or freedoms restricted by legislation of specific application of an institution or by an official exercising public power can file an application with an administrative court to defend himself or herself.
From a democracy development perspective, the implementation of a decentralised administrative system has also been important. In Estonia, many independent administrators (legal persons in public law) who independently perform their assigned public administrative functions have been created by law. First of all, the concept of a local government in Estonia must be explained. Under subsection 2 (1) of the Local Government Organisation Act, a local government has the rights, capacity and obligations of a democratically formed body of power to, pursuant to law, independently organise and direct local life based on the justified needs and interests of the residents of a rural municipality or city, considering the peculiarities of development of the rural municipality or city. *3
According to the Universities Act, universities are also independent legal subjects (i.e. legal persons in public law). *4 The legal status of the University of Tartu is established in the University of Tartu Act. *5 The Act grants the University of Tartu greater autonomy than other universities, that is, greater powers of judgment and, consequently, greater responsibilities. Both local governments and universities may be treated as corporations in public law (due to the fact that they each have a membership). Such corporations in public law include, by law, the Chamber of Notaries which is an association in public law with the rights of a legal person according to subsection 34 (1) of the Notaries Office Act *6 , and the Bar Association. Public agencies are legal persons in public law in positive law and include the Estonian National Library (National Library Act) *7 , Eesti Raadio and Estonian Television (Broadcasting Act) *8 , as well as the Bank of Estonia (Bank of Estonia Act) *9 . Public foundations are also legal persons in public law. The Estonian Cultural Foundation serves as an example. Under § 1 of the Estonian Cultural Foundation Act, the Estonian Cultural Foundation is a legal person in public law, the aim of whose activities is to support the arts, national culture, and fitness and sports through the purposeful collection and distribution, in the form of stipends of money. *10 Legal persons in public law are both organisationally and legally independent which enables them to be solely responsible for an area administration. They are created in the public interest and subject to state supervision. In positive law, precedents have been created where public functions are delegated to persons in private law who exercise so-called public (state) administration. Admittedly, there are few such examples. Notaries who are persons in private law, but have been given the authority to perform notarial acts by law are one such example.
The Government of the Republic Act which was passed by the Riigikogu on 13 December 1995 and entered into force as of 1 January 1996 is an important Act helping to ensure the legality of executive power. *11 Despite its title, this Act provides for the organisation of executive power from the Government of the Republic to the state local administrative bodies. Under § 1 of this Act, the Government of the Republic exercises executive power pursuant to the Constitution and the laws of the Republic of Estonia. Thus, the basis of activities of executive power can only be the Constitution and the laws, and not administrative acts. This requirement arises from paragraph 1 of § 3 of the Constitution which states:” the powers of state shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith”. The Government of the Republic exercises executive power directly or through government agencies. This Act divides the agencies of executive power into two categories. These are:
1) government agencies; and
2) state agencies administered by government agencies.
Under § 39 of the Act, government agencies are agencies which are financed from the state budget and whose main function, pursuant to law, is to exercise executive power. These agencies are ministries, the State Chancellery and county governments, as well as executive agencies and inspectorates, and their regional offices with the authority to exercise executive power. Other government agencies may also be prescribed by law. Government agencies, except the regional offices of government agencies and inspectorates, are formed, restructured and terminated pursuant to law. Until the entry into force of the Government of the Republic Act, the right to form and terminate executive agencies and inspectorates resided with the Government. This has enabled the government, with few restrictions, to form new government agencies which in turn has increased the growth of the executive power apparatus and the number of state public servants. Many executive agencies and inspectorates have become larger in number of officials than some ministries. After the entry into force of this Act, the formation of government agencies is under the control of the Riigikogu. Regional offices of executive agencies and inspectorates are formed, restructured and terminated by a minister. The competence of government agencies is established by their founder pursuant to law. Government agencies cannot delegate the rights and functions within their competence to other state or local government agencies unless otherwise provided by law or an administrative agreement concluded on the basis of law.
State agencies financed from the state budget whose primary function is not to exercise executive state power may be administered by government agencies. These so-called state agencies administered by government agencies are not independent legal subjects; they either serve government agencies or perform other state functions in cultural, educational, social or other spheres. Examples of state agencies administered by government agencies include state museums, theatres, libraries, and schools.
County governments are local administrative bodies. According to the Territory of Estonia Administrative Division Act, Estonian territory is divided into counties, rural municipalities and cities. *12 In a county, state administration is exercised pursuant to law by the county governor and other government agencies. In rural municipalities and cities, local government administration is exercised on the basis of the Local Government Organisation Act. Chapter 6 of the Government of the Republic Act provides for the organisation and competence of a county governor and county government.
The function of a county government is, pursuant to law, to represent the interests of the state in the county and to oversee the uniform and balanced development of the county A county governor is appointed to office by the Government of the Republic on the proposal of the Prime Minister for five years in concordance with representatives of the local governments of the county. He or she co-ordinates co-operation between ministries and other agencies of executive state power, as well as with local governments in the county. Among other functions, within the competence of a county governor is the making of proposals to the Government of the Republic and ministries for the organisation of work of the local administrative agencies of government agencies and other state agencies located in the county.
The Government of the Republic Act also establishes the supervisory competence of a county governor over the activities of local governments. The county governor supervises the legality of legislation of specific application of the local government councils and governments within the county, and in the cases and to the extent provided by law, also supervises the legality and purposefulness of the use of state assets in the use or control of the local governments. He or she may demand copies of legislation of the local government councils and governments within the county which have entered into force. If a county governor finds that legislation of specific application of a local government council or government is, wholly or partly, contrary to the Constitution, a law or other legislation issued pursuant to law, he or she may submit a proposal to the local government council or government in writing requiring the legislation of specific application or a provision thereof to be brought into conformity with the Constitution, the law or other legislation within fifteen days. If the local government council or government does not or refuses to do so within the prescribed deadline, the county governor must file a protest with an administrative court pursuant to procedure prescribed in the Administrative Court Procedure Code.
The Act also establishes the organisation of supervisory control. Supervisory control is exercised through subordination to ensure the legality and purposefulness of the activities of government agencies and the state agencies under their administration. A person exercising supervisory control has the right to:
1) issue a precept for the elimination of deficiencies in a legal instrument or act;
2) suspend the performance of an act or legal instrument; and
3) invalidate a legal instrument.
The procedure for supervisory control provided by the Government of the Republic Act does not extend to:
1) acts of state supervision and decisions made in the application of the enforcement powers of the state; and
2) pre-court settlements of complaints or protests made with respect to a legal instrument or act of an agency of executive power or of an official in the cases prescribed by law.
The Government of the Republic Act also provides the competence of the heads of government agencies, and the content requirements and formalities for legislation of general application issued by government agencies and their heads.
In the author’s opinion, legal regulation of the last-mentioned sphere is of special importance because up to the entry into force of the Government of the Republic Act, the conditions and procedure for issuing legislation have not been provided by law and consequently, more often than not, the government agencies and officials surpassed their competence when issuing legislation.
Administrative liability has also been reformed. On 8 July 1992, the Administrative Offences Code of the ESSR was replaced by the Administrative Offences Code *13 , a revised version of the former Code. The following essential principles are realised in the Code:
1) prerogative for establishment of administrative liability is granted to the Riigikogu. Rules in which administrative liability is prescribed are to be established by the Government of the Republic or pursuant to procedure specified by the Government. By a general delegation, city and rural municipality councils may also have the right to issue rules. Liability for violation of the above-mentioned rules is prescribed by corresponding norms in a special part of the Code;
2) The former administrative liability system is changed and the administrative penalties of fine, removal of special right, and administrative arrest are prescribed. Removal of special right is prescribed for application both as a primary and supplementary penalty whereas fines and administrative arrest are prescribed as primary penalties only. The implementation of administrative arrest is only within the competence of an administrative court. Confiscation of an item which is the tool or immediate object of an administrative offence is prescribed to be applied by way of special confiscation;
3) Compared with the Administrative Offences Code of the ESSR, a thorough procedure for hearing administrative offence cases and determining a penalty is provided. In the procedure, the guarantees for an individual’s defence are taken into account based on European standards. Public institutions such as comradely courts and committees for combating alcohol abuse are excluded from the bodies authorised to hear violations of law. The role of the court in hearing administrative offences is increased, and the court procedure for an appeal of a decision is guaranteed (appeal and cassation).
The procedure for administrative judgment enforcement is also provided by law. Part III of the Judgment Enforcement Code regulates the fulfilment of decisions in administrative matters, and includes for example, the procedure for collecting fines is. *14 In part, areas under the Judgment Enforcement Code are also regulated in the Administrative Offences Code. For example, the latter establishes in greater detail the procedure for special confiscation and the removal of special rights.
From the point of view of the development of administrative law, the Public Service Act which entered into force on 1 January 1996 is essential. *15 In the Act, the public service is built on the so-called system of performance of offices. The Act does not regulate the entire public service however. Employment in agencies which exercise public power is considered to be within the public service under the Act. The public service also includes employment in the Office of the President of the Republic, the Office of the Legal Chancellor, courts, government agencies, agencies of the Defence Forces, penal institutions, rural municipality and city governments, city government executive agencies and bureaus of local government associations. The Act divides public servants into officials, support staff and non-staff public servants. The Act covers officials to the full extent whereas the employment relationships of support staff are regulated by labour law. The Act also regulates the employment of officials in the public service, the rights and duties of service of officials, promotion, incentives and disciplinary action against officials, as well as the bases for evaluation and release from service of officials. An Estonian citizen who has attained twenty-one years of age, has at least a secondary education and active legal capacity, and is proficient in Estonian to the extent established by law may be employed in the public service as a state official. Similarly, an Estonian citizen who has attained eighteen years of age, has at least a secondary education and active legal capacity, and is proficient in Estonian to the extent established by law may be employed in the public service as a local government official.
A majority of other spheres of administrative activities are also regulated by the Public Service Act. Examples of areas of administrative law based on law include building and planning law, highway law, traffic law, aviation law, education law, culture law, police law, health care law, etc.
The above does not mean however that administrative law, as a branch of law, is sufficiently regulated. Active legislative drafting should continue in the near future. In principle, this work may be divided in two directions:
1) drafting bills for areas of administrative activities which are not regulated as yet;
2) amendment of existing Acts. On the basis of existing legal practice, the effectiveness of one Act or another and the existence of gaps in the legislation can be generalised. It may be concluded that the second stage in shaping administrative law as a branch of law has begun with the main emphasis being put on quality.
As to the areas which should be legally regulated, administrative procedure should be mentioned first. Today, Estonia does not have a general administrative procedure Act whose primary task would be to establish legal guarantees for persons participating in administrative procedure and to ensure the legality of procedure. Although certain classes of special procedure are provided for in special Acts, this is done incompletely. In the opinion of the author, these Acts do not comply with Article 6 of the European Convention on Human Rights ratified by the Republic of Estonia. For example, the right to be heard when one’s case is being considered is not provided for.
The law should also establish the acquisition of information in administrative agencies. Under § 44 of the Constitution, everyone has the right to freely obtain information disseminated for public use. Also according to the Constitution, all government agencies, local governments and their officials are, pursuant to procedure provided by law, obligated to give an Estonian citizen upon his or her request information on their activities, except information whose disclosure is prohibited by law, and without exception the information prescribed for internal use. At present, only the State Secrets Act is in force but the use of so-called information for official use is not legally provided for. Consequently, officials may decide at their own discretion which information is only meant for official use and thus, hinder people from realising their basic right.
Legal regulation is also needed for certain areas of the public service to which the Public Service Act does not extend. For example, remunerative service in the Defence Forces for officers and service members is not currently regulated.
The institution of administrative liability also needs supplementing and further reform, together with punishment reform. Suggested reforms include the regulation of the system of crimes and administrative offences, differentiation of administrative offences and alteration of the structure of the legal basis of administrative liability.
In conclusion, while it could be said that during a relatively short period of time, that is five years, Estonian administrative law has been formed, this should be treated as only a stage of an ongoing process rather than as a completed result. The Republic of Estonia has undertaken the objective of building a state based on the rule of law. Administrative law which must comply with the principles of a state based on the rule of law has an important role in this process.