Juristica International

Legal Bases for Judicial Review of Administrative Discretion

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.

1. Constitutional Prerequisites

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 view.⁴

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.

2. Prerequisites Derived from the Norms of Administrative Court Procedure

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 legislation and executed acts of an administration are within the competence of the administrative courts, irrespective of whether these constitute discretionary decisions or not. For the purposes of the Administrative Court Procedure Code, the term “act” means the activity or inactivity of or delay by an administration.⁷ Thus, the cases where the exercise of administrative discretion is refused are also encompassed. Subsection 3 (2) of the Code does not exclude the possibility of review of discretion.

Pursuant to the Administrative Court Procedure Code, the following are not within the competence of administrative courts:

1) complaints and protests, if their resolution is connected with a civil law dispute which is within the competence of the county and city courts;

2) applications and complaints against legislation which are to be resolved pursuant to procedure prescribed by the Constitutional Review Court Procedure Act; and

3) applications and complaints which are resolved under civil or criminal procedure.

Section 5 of the Administrative Court Procedure Code establishes the legal standing or subjective competence of the administrative courts. Pursuant to subsection 5 (1), everyone who considers that legislation or an act of an organ, agency or official referred to in section 4 of the Code, has violated his or her rights or restricted his or her freedoms, is entitled to file an application with an administrative court to defend himself or herself. An association of persons, including associations which do not constitute legal entities, may have recourse to an administrative court in the interests of its members or other persons, if the founding document, articles of association or law grant such right. Thus, this provision establishes that everyone has a right of recourse to the courts if an administration violates his, her or its rights or restricts his, her or its freedoms. The provision makes no distinction on the basis of whether a violation was committed when exercising discretionary powers. Subsection 5 (2) of the Code provides that a local government or an autonomous ethnic minority cultural agency, who considers that legislation of an executive body has violated its rights or restricted its freedoms, is entitled to a right of recourse to a court. Although this provision only mentions local governments and autonomous ethnic minority cultural agencies, the right is extended to every legal person due to subsection 9 (2) of the Constitution. Pursuant to this latter provision, the rights, freedoms and duties set out in the Constitution extend to legal persons in so far as this is in accordance with the general aims of legal persons and with the nature of such rights, freedoms and duties.

Under subsection 5 (3) of the Administrative Court Procedure Code, the right to file a protest with a court is also vested in a body, to whom the law vests the right to exercise state supervision over the activities of the bodies, offices and officials referred to in section 4 of the Code. Presently, the legislators have granted such right to the county governors who exercise supervision over the legality of the activities of local governments. From this, another conclusion can be drawn: a county governor has the right to file a protest with an administrative court against a local government for discretion exercised in violation of the law.

Section 9 of the Administrative Court Procedure Code provides for the preparation of a case for a judicial hearing. This provision is essential in the sense that it enumerates the means available to courts for a thorough and substantial preparation of a case. The issue arises of whether these means are sufficient for a court to review whether the administration has exceeded the legal framework when exercising discretion or whether it has appropriately applied an undefined legal concept. According to subsection 9 (2) of the Code, an administrative judge to whom a complaint or protest has been filed must ascertain the body of executive state power, local government, autonomous ethnic minority cultural agency, or the official thereof, whose legislation or act has been complained or protested against, and send to it or the official a copy of the complaint or protest together with notice of the time and place of the administrative hearing of the case. Under subsection 9 (3) of the Code, the administrative judge is entitled, if necessary, to demand that the executive body, local government or autonomous ethnic minority cultural agency, or the official thereof submit the legislation or act which is complained or protested against, or documents pertaining to the act of the official, as well as a written explanation as to the complaint or protest, and determine the deadline by which these materials must be submitted. Subsection 9 (4) is of special importance with respect to judicial review of the application of an undefined legal concept. This provision entitles an administrative judge to demand that necessary written evidence be submitted by other competent bodies, offices or officials; to order the opinion of an expert in accordance with the Civil Court Procedure Code; and to hold a view of the locus in quo.

There can be only one conclusion: under the Administrative Court Procedure Code, an administrative court has sufficient legal jurisdiction and means to exercise review of the legality of administrative discretion and the application of undefined legal concepts.

Section 20 of the Administrative Court Procedure Code enumerates the types of court decisions. An administrative judge may declare legislation or an act against which a complaint or protest has been filed illegal, either wholly or in part, or may not satisfy the complaint or protest. If an administrative court declares legislation or an act illegal, it must propose in its decision that the pertinent body, office or official review the case and make a new decision or perform another act. Even this provision imposes no limits and constitutes no hindrance to a judge making final decisions in cases involving the exercise of administrative discretion or the application of undefined legal concepts. The court may choose the degree of specificity of its orders in a decision. If the circumstances of the case are not clear, the court may demand that the case be reviewed. If the court finds that the solution is clear, it can make a specific prescription.

In conclusion, the Administrative Court Procedure Code constitutes no impediment to judicial review of administrative discretion and the application of undefined legal concepts.

Judicial Practice

The administrative courts of the newly re-independent Estonia began operation in September of 1993. During the past three and a half years of practice, the courts have not had to resolve many cases pertaining to administrative discretion. Therefore, it is difficult to draw thorough and far-reaching conclusions. On the other hand, the decisions made still enable certain tendencies in court practice to be identified.

As the court cases indicate, one of the major problems of administrative practice is the reasoning of administrative decisions or, more precisely, the lack of reasoning. The administrative acts of administrations often fail to set out the reasons for the act. This restricts the right of complaint, as a person is not informed of the reasons for the decisions made by the administration and thus, he or she lacks the ability to give reasoned counter arguments. In such instances, the administrative courts have usually declared the pertinent administrative act to be illegal. As an example, the Government of the Republic refused, by an order without reasons, to grant Estonian citizenship to three persons identified as M.R, L.R. and O.R. The 1938 Citizenship Act,⁸ valid at the time of the order, served as the legal basis for resolution of the case. Pursuant to section 8 of the Act, the Government of the Republic is granted a right of discretion when determining matters pertaining to the granting of citizenship by way of naturalisation. The Act did not contain an express requirement that such decisions be reasoned. Despite this fact, the Administrative Law Chamber of the Supreme Court, in its order,⁹ rightly stressed that the fact that the 1938 Citizenship Act lacked bases for denying citizenship, did not mean that the Government of the Republic may issue orders without reasons. The court further stated that it is necessary to present reasons if an individual's application is not satisfied by an administrative act, and that the requirement to give reasons is derived from section 15 of the Constitution, which gives everyone the right to seek judicial review of administrative decisions pertaining to him or her. The court underlined that neither the Constitution nor the Administrative Court Procedure Code can result in administrative decisions, against which it is not possible to complain, and that in order to contest the legality of an administrative act, a person must be able to know the reasons for the issue of such acts. Otherwise, the exercise of a constitutional right of complaint, which involves contesting the legality of such reasons, is not possible. The legality of decisions made by administrative discretion is no exception. Further, the court stated that obtaining citizenship by naturalisation under the 1938 Citizenship Act is not a subjective decision and, thus, the reasons for denying citizenship may be unconstitutional, in that, they may violate an individual’s rights such as the right to equal treatment, which arises from sections 10 and 12 of the Constitution. As well, in order to exercise review of the legality of such administrative acts, the acts must be reasoned.

The court also stressed in the above case the constitutional restrictions resulting from a denial of citizenship. However, such limits are also prescribed by law. This is above all performed through the purpose and purport of a law. For example, in the given case, social, political, economic and other considerations may serve as the basis for refusal. Thus, reasons derived from considerations of national security, the labour market and foreign policy would be consistent with the purpose and purport of the law. In this case, foreign policy interests of the state can be considered. For example, if granting Estonian citizenship to a specific alien would cause a worsening of diplomatic relations with the state whose citizen the alien had previously been, the government must decide whether to give priority to such foreign policy interests or to proceed from humanitarian considerations. Both decisions would be of equal weight in the legal sense and it would be possible to interpret both of them from the perspective of the purpose and purport of the law, that is, they would both be consistent with the law. In the discussed case, the purport of the law must be determined by interpretation. It is important to stress in this context that the pertinent consideration must be reasoned to the extent that it would be possible to exercise judicial review of it. This requirement significantly decreases the possibility of arbitrariness. For example, it would be a case of undeniable arbitrariness if the government refused to grant citizenship on reasons based on ideology, religion, nationality or the like. These considerations are in conflict with section 12 of the Constitution.

The new Citizenship Act, which entered into force on 1 April 1995, gives the Government of the Republic no right of discretion in this sphere. Section 21 of the Act concerning refusal to grant or restore Estonian citizenship provides an exhaustive list of bases for refusal to grant citizenship and any other reason is not permitted. Pursuant to subsection 21 (2), the Government of the Republic is entitled to exercise discretion in only the case where Estonian citizenship may be granted or restored to a person who has retired from the armed forces of a foreign country, has been married to an Estonian citizen by birth for at least five years and this marriage has not been divorced.¹⁰ The Government of the Republic may or may not grant citizenship to a person who meets these requirements, but in the case of a refusal, the government must consider the limits set by the Constitution and the Citizenship Act.

Most of the disputes heard by the administrative courts concern issues pertaining to privatisation and property reform. Pursuant to subsection 3 (4) of the Residential Privatisation Act, the following must be privatised: residential spaces used under lease; all residential spaces in houses designated for reconstruction or extensive repairs; non-inhabited residential spaces in new houses, in houses that have undergone extensive repairs or have been reconstructed or are under construction; and residential spaces that have become unoccupied because of the departure or death of the previous owner.¹¹ Subsection 3 (5) enumerates the cases when it is not possible to privatise residential spaces. The following are not to be privatised: residential spaces of employers; residential spaces of tenants against whom action has been taken to amend, terminate or invalidate the lease, until the case is resolved pursuant to prescribed procedure; illegally expropriated residential spaces the return or compensation for which an application has been submitted pursuant to prescribed procedure, until the issue of return is resolved or until the entitled subject waives his or her claim by written notice with a notarised signature to that effect; and residential spaces situated in buildings which remain in state ownership and which have been entered, by the Government of the Republic, in the property register. The last case above empowers the government to exercise discretion. Only the public interest can serve as the basis of consideration for the Government of the Republic whether to enter a building in the register or not. Subsection 3 (8) gives the right to exercise discretion also to local governments. The council of a local government has the right to determine the residential spaces, which will not be privatised on the basis of their demolition, reconstruction, further use under lease or for some other good reason. This provision also contains an undefined legal concept.

Pursuant to the Principles of Ownership Reform Act,¹² illegally expropriated property is, as a rule, to be returned to the entitled subject of property reform. The law enumerates the specific bases for not returning illegally expropriated property which is the object of property reform. Among other bases, property is not to be returned if, on the proposal of a government office or local government council, the Government of the Republic has decided not to return the object of property reform due to its military, law enforcement, cultural or social nature, or the fact that it is under state protection, or is a building in the possession of the state or a local government (clause 12 (3) 5)). In these cases, the Government of the Republic is also entitled to exercise discretion.

For both examples above, the law generally prescribes a certain decision or determined legal consequence, deviations from which are only allowed as exceptions. A decision made by exercising a right of discretion belongs to such exceptions. An example, is the case in which H.V. appealed an order not to return illegally expropriated property.¹³ By the decision of the Return of and Compensation for Illegally Expropriated Property Committee, H.V. was declared an entitled subject of property reform and she submitted an application for the return of her house and land. The Government of the Republic adopted a decision not to return the illegally expropriated property to H.V. The order of the Government of the Republic read as follows: “To agree with the proposal of the Ministry of Finance not to return, pursuant to clause 12 (3) 5) of the Principles of Ownership Reform Act (RT I 1994, 38, 617), the illegally expropriated property located at Era 1, Tartu.”

In this case, the Administrative Law Chamber of the Supreme Court stressed in its order, that subsection 5 (1) of the Administrative Court Procedure Code provides that the bases for recourse to an administrative court are the violation of the applicant's rights or restriction of his or her freedoms. If an order affects an individual's rights and obligations under public law, the order must be reasoned, that is, in addition to a reference to a provision of law, the order must also present the reasons upon which the order is based. In order to be able to contest an order, an individual has the right to know the reasons for the issue of the order which affects his or her rights and interests. This requirement for reasons also ensures that an order can be reviewed by the court. The court further stated that pursuant to clause 12 (3) 5) of the Principles of Ownership Reform Act, the illegally expropriated property which is the object of property reform is not to be returned if, on a reasoned proposal of a government office or local government council, the Government of the Republic decides that the return of the object of property reform which is of a military, law enforcement, cultural or social nature, or an object which is under state or local protection, would prejudice the interests of the state or of a local administrative unit, or that the return of the illegally expropriated property which is an asset of an enterprise or an organisation, would make the purposeful use of the rest of the property technologically impossible (wording of clause 5 (1) 5) was valid of 10 November 1995). The court found that the appellant’s claim, that pursuant to the wording of this provision an administrative act must contain reasons as to which object enumerated in clause 12 (3) 5) is being relied upon and whether and how the return of the illegally expropriated property would prejudice the interests of the state or a local administrative unit, was justified. The court found it necessary to stress that without the reasoning of these circumstances it is not possible to review if the Government of the Republic, when issuing the order, has adhered to clause 12 (3) 5) of the Principles of Ownership Reform Act.

Clause 12 (3) 5) of the Principles of Ownership Reform Act provides direction for the exercise of discretion through such undefined legal concepts as “state interest”, “interests of a local administrative unit” and “technological impossibility”. On the basis of the above order of the Administrative Law Chamber of the Supreme Court, it may be stated that the court intends to review the legal limits of administrative discretion. In the given case, it proved impossible because the discretionary decision lacked reasons. This became the basis for satisfying the cassation appeal.

The above claim is also supported by the example below. The County Council of Paikuse adopted a regulation, clause 1 of which declared that residential spaces located at EPT 9-15, Paikuse, were not to be privatised due to their “continued use under lease (for the teachers of Paikuse Basic School).” A tenant thereof filed a complaint against this decision with an administrative court and the case reached the Administrative Law Chamber of the Supreme Court. In its order, the Chamber stated that in the contested administrative act, the Paikuse County Council has, without sufficient reasons, selected residential spaces the privatisation of which is not permitted because of their continued use under lease. The documents of the court file do not prove that the declaration that the residential space located at EPT 9-15, Paikuse not be privatised was justified.¹⁴

If an administration exercised a right of discretion pursuant to the purpose and purport of law and this can be understood from the reasoning of the administrative act, the exercise of discretion would be considered lawful. An example is the order of the Administrative Law Chamber of the Supreme Court concerning the review of the Tartu City Government cassation appeal pertaining to a declaration by the local government body not to privatise a residential space.¹⁵ In order to improve the living conditions of elderly people in need of social assistance, the Tartu City Council, by its decision, on the basis of subsection 3 (8) of the Privatisation of Residential Space Act, declared that the houses located at 67 and 40 Mõisavahe Street to be houses for elderly people in need of social assistance and that these houses were not to be privatised. R.N. filed a complaint with the administrative court asking that the Tartu City Council decision be declared illegal in so far as it concerned the house located at 67 Mõisavahe Street. The Administrative Law Chamber of the Supreme Court reviewed the case by way of cassation and found that the exercise of discretion was legal and justified.

The cited examples assure observers that the administrative courts have left no legal vacuum for administrative discretion. Instead, such courts review whether or not an administration, when exercising discretion, has exceeded the legal limits.

With regard to undefined legal concepts, on the basis of given examples, the administrative courts have held that these concepts must be reviewed to their full extent. Courts view undefined legal concepts as a problem of law application. For example, in its order concerning the review of the cassation appeal of A.Ü. (representative) pertaining to the application of clause 12 (3) 5) of the Principles of Ownership Reform Act, the Administrative Law Chamber of the Supreme Court stated the following: “The Principles of Ownership Reform Act does not specify the concept of cultural and social objects. The court finds that the appellant was justified to claim that if the legislators have not specified a concept used in a law, the concept should be interpreted in its universally recognised meaning when applying it. Thus, social objects are pre-school children's establishments, schools, various health care establishments, emergency shelters, nursing homes, etc. The building under dispute houses the Türi City Government. The City Government as a body of local government manages and governs local life and fulfils other public law administrative functions pursuant to the Local Government Act. Hence, an administrative building is not a social object in the sense of clause 12 (3) 5) of the Principles of Ownership Reform Act and cannot be considered to fall within the category of illegally expropriated property which is not to be returned.”¹⁶ Pursuant to the wording of clause 5 (3) 5) which was in force during the trial of this case, administrative buildings in possession of the state or a local government do not belong to the list of objects that are not to be returned.

The Administrative Law Chamber of the Supreme Court stressed the requirement that courts must exercise supervision over the application of undefined legal concepts in its order concerning the review of the cassation appeal of AS Maaleht pertaining to a refusal to file a trademark.¹⁷ Pursuant to subsection 12 (6) of the Trademarks Act, the Patent Office either registers or refuses to register a trademark on the basis of an expert’s opinion, and must provide reasons for its decision.¹⁸ In this case, the Patent Office refused to file the AS Maaleht trademark. In its adjudication, the Patent Office referred to a basis for refusal (clause 7 (1) 2) of the Trademarks Act), and added the following: “... such signs shall not be registered as trademarks which may mislead the consumer as to their origin”. The court found that the Patent Office in its adjudication had failed to explain on what specific circumstances the decision was taken. Thus, it is not clear from the Patent Office’s adjudication how the sign, if registered as a trademark, would mislead the consumer or as to the origin, what product or product category this sign would mislead the consumer. The court emphasised that an administrative act must be reasoned because this is the only way to ensure the possibility for review of its content. The court order stated that when reasoning an administrative act the pertinent provision of law must be referred to, and reasons must be given for the adoption of the decision. The court further held that it is especially important that such acts which restrict an individual's rights and freedoms be reasoned. The order stressed also that courts have the right and the obligation to review whether procedural requirements for the adoption of disputed administrative decisions and their form, as well as their substantive bases, meet prescribed requirements.

Administrative courts also review the legality of the application of undefined legal concepts that require special technical knowledge. For instance, pursuant to clause 12 (3) 2) of the Principles of Ownership Reform Act, illegally expropriated property, which is the object of property reform, will not be returned if the property has not retained its former individualised form. In disputes over whether property has retained its former individualised form (which is an undefined legal concept), the courts, as a rule, have ordered for construction and engineering experts to be consulted, even if such expertise has already been consulted by the administration.

On the basis of the present scarce number of precedents, the following generalisations can be made:

1) administrative courts view administrative discretion as a legal issue and review the legal limits of the exercise of administrative discretion; and

2) the application of undefined legal concepts is reviewed by courts to the full extent, replacing if necessary, the interpretation of the administration by its own interpretation.

The Extent and Possible Boundaries of Evaluation in the Present Legal Order

In the application of undefined legal concepts, the extent of evaluation can be considered only in exceptional cases and only if judicial review has reached its functional limits. For example, it is for both objective and subjective reasons that judicial review of ordinary examinations is not possible. The courts cannot possibly restore an examination setting and assume the role of examiner, in order to confirm the level of a person's knowledge. This principle however, is not an absolute one. If, on the basis of an examination, a person acquires the right to practice a specific profession, vocation or hold a certain post, then such examinations should be reviewable by the courts. On the basis of pertinent documents, it should be possible to determine whether an examination was given at an appropriate level or not. Therefore, examination committees should be ready to record replies given at an examination so that the courts may later review them. The requirement of judicial review in this respect arises from section 29 of the Constitution, which provides that an Estonian citizen has the right to freely choose his or her sphere of activity, profession and place of work. This is a fundamental right, the violation of which a person must be guaranteed judicial protection. This, in turn, is guaranteed by subsection 15 (1) of the Constitution.

The senior assistant attorney's examination is, for example, one such examination. In accordance with the Estonian Bar Act, an Estonian citizen who has a higher legal education, is suitable for work at the Bar and who has, immediately before joining the Bar, worked as a lawyer for at least two years, and has passed the senior assistant attorney's examination before a qualification committee, may be accepted to the Bar.¹⁹ The judge's examination and the judge’s assistant’s examination belong within the same sphere. Pursuant to section 6 of the Status of Judges Act, only persons who have passed the appropriate examination,²⁰ have the right to work as judges and judge's assistants. The same is true for notaries. Pursuant to section 12 of the Notaries Office Act, an Estonian citizen who has a higher legal education, has successfully performed the probation service and who has passed the notary's examination before the examination committee of the Chamber of Notaries, may become a notary.²¹

In relation to section 29 of the Constitution, the results of defending a graduate thesis in a university is also subject to judicial review. Pursuant to subsection 22 (4) of the Universities Act, study at a university should offer special, professional and vocational preparation.²² This sphere also falls under the influence of section 29 of the Constitution. Administrative courts are also empowered to review the results of final examinations of gymnasiums and high schools, including state examinations, as sections 14 and 15 of the Public Service Act stipulate, that only a person who has at least a secondary education may be employed in the service as a state official or a local government official.²³ More examples of the type analogous to the above exist.

It is also possible to review the content of pedagogical evaluation decisions but to only a certain extent. This is pre-conditioned by the nature of such decisions, in that, they are evaluative. Only the legal boundaries of such decisions can be reviewed. Also, the courts should be able to fully review decisions on the expulsion of pupils from school due to unworthy behaviour. In such cases, subsection 37 (1) of the Constitution which provides that everyone has the right to education becomes effective.

Certain evaluation decisions pertaining to a service relationship belong in the same category as pedagogical decisions. For example, on the basis of subsection 72 (1) of the Public Service Act, a state official may engage in enterprise only with the permission of the person or administrative agency who has appointed him or her to office if the enterprise does not hinder the performance of his or her functions or damage the reputation of his or her office. If a state official does not get permission because the enterprise might hinder the performance of his or her functions, it is almost impossible for a court to state the opposite. In this field, the administration inevitably has the final say. However, this is not the case with such undefined legal concepts as an “indecent act”. Pursuant to subsection 84 (3) of the Act, an indecent act is a category of disciplinary offences. Pursuant to subsection 160 (5), an official may request the cancellation by a court of a disciplinary punishment imposed on him or her if the official is of the view that he or she has been punished unlawfully, including a punishment which apparently does not correspond to the gravity of the offence and to the circumstances surrounding its commission. Proceeding from the foregoing, a court has the right and the duty to assess, or to put it more precisely, the right to reassess the administration's assessment of what was an indecent act in a particular case. Thus, the court has the right to make a final “proper” decision. There is a problem though with this approach. The approach that the last decision is the correct one would be justified if the theory is followed that there is only one correct decision and when applying undefined legal concepts there is only one correct solution, which is determined by interpreting the law. This view is in conflict however with the contemporary teaching of legal method. The process of interpretation also encompasses creative aspects and the interpretation of undefined legal concepts can often lead to several legally correct solutions.

In this context one could ask whether the replacement of a subjective interpretation by an administration as to what is an indecent act in a specific case, by an equally subjective interpretation by a court concerning the same undefined legal concept, will guarantee the only correct solution. Despite this problem, judicial review of the application of undefined legal concepts is, in addition to the argument for protection of a person’s rights, also supported by the necessity to ensure the uniform application of law, the certainty of law and equality.

Decisions requiring value judgements pertaining to such spheres as culture, art and the like, can be reviewed only to a limited extent, as firstly, these decisions require special knowledge and secondly, the level of subjectivity of such decisions is remarkably high. This can be illustrated by the National Heritage Preservation Act, which enumerates the categories of cultural heritage in section 3. Among other things, immovable cultural heritage embraces civil, industrial and religious buildings of architectural and historical value and their ensembles and complexes; buildings that reflect the development of science, technology and production; buildings of historical value; monuments; burial grounds; plots of land; and natural objects. A thing is declared an object of cultural heritage if it possesses the required attributes. The National Heritage Preservation Agency has set up a council of experts from the fields of archaeology, ethnography, architecture, art, science and the history of engineering, the basic task of which is to give opinions as to whether a thing of cultural value has the attributes of an object of national heritage. The administration will make decisions on the basis of such opinions. If such decisions do not exhibit an obvious arbitrariness, the administration should be left to make independent assessments; even more so, when these decisions are based on expert opinions.

Independent administrative assessments are also possible in cases of decisions pertaining to planning and risk. The final decision as to when and to what extent an administration is entitled to make independent assessments is up to the courts. The courts must know the functional limits of the administration of justice. The general rule is that the application of undefined legal concepts is fully reviewable by the courts.