The entry into force of the new Code of Civil Procedure (CCP) on Jan. 6, 2006 was a matter of frequent discussion. However, for undertakings, which seek protection in the court from public authorities, amendments to the Code of Administrative Court Procedure (CACP), enforced on Jan. 9, 2006, were equally important.
It must be said, that administrative courts have already done a significant amount of work to clip the wings of public servants' unauthorized activities and expand democratic principles. However, the slowness of the procedure in administrative courts is a persisting problem. The object of the new amendments to the CACP was to speed up, as well as increase the efficiency of procedures in the administrative courts.
The amendments to the legislation aim to enact some significant procedural changes:
- The amendments provide an option for a written procedure, if the participants agree to it. In a written procedure, only the filing of the complaint and the subsequent exchange of procedural documents are required from the participants. A participant, or its representative, is not required to show up for a court session. The written procedure is a reasonable choice in most cases, because it greatly reduces time and money for the participants.
- The amendments also make it possible for the courts to prevent processing of unfounded complaints ex ante. Many entrepreneurs have had experiences with obviously frivolous administrative complaints e.g. where a person having no real connection with an administrative act, a building permit for example, files a complaint only to extort something. Before the amendments, the entitled person of an administrative act was supposed to defend himself against a clearly hopeless complaint in a long and nerve-wracking procedure. Elimination of handling of apparently frivolous complaints does not violate a person's constitutional right of recourse to the court, since the option to appeal the court ruling is still open.
- In the case where an administrative act, which is favorable to a private person, is challenged, the respondent of the complaint would be the administrative authority and the person favored by the act participates in the procedure as a third person. The third person is often the one to carry big expenses- for example, in order to secure the validity of a challenged detailed plan, which is suitable to the third person. However, before the Amendment, the third person could not claim legal expenses from the complainant even if the complaint turned out to be unfounded. In this way, the third person was unjustly left without legal protection. The amendments provide that the payment of court and representative expenses can now be ordered in favor of the third party. This will presumably reduce the desire to file unfounded complaints, for example for the sole purpose to bring about damages to the third person.
- As opposed to "traditional" states based on the rule of law, a compromise in a court procedure is a rare occasion in Estonia. Our "always unmistakable" public officialdom is usually very inflexible, so a negative, but "dignified" solution is preferred to a positive compromise. The amendments provide a very welcomed duty to the courts to facilitate compromises.
- Activities of the court are still guided by the "principle of investigation" in the renewed CACP, which means, that courts take an active stance in examining the circumstances of a matter. However, this good principle previously had often been misused in the procedures by passive participants, who relied only on the courts and caused the procedures to drag on and overburden the resources of the courts. The amendments emphasize the obligation of the parties to participate in actively producing the evidence. The amendments also provide, that the court cannot exceed the limits of the complaint or decide anything, which is not applied for. For this reason, complaints from now on have to be worded more precisely.
In conclusion, the amendments are in all ways reasonable and surely effective for entrepreneurs. Yet the amendments only alleviate the present state of the administrative court procedure- nothing will stop the procedures from dragging on, as long as the courts are still overburdened. Therefore, the amendments do not enact procedural time limits on examining matters by the courts.
Leon Glikman is attorney at law at Teder Glikman & Partners, a member of Baltic Legal Solutions, a pan-Baltic integrated legal network of law firms which includes Kronbergs & Cukste in Latvia Jurevicius, Balciunas & Bartkus in Lithuania, dedicated to providing a quality &"039;one-stop shop&"039; approach to clients&"039; needs in the Baltics.