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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

Corpus Juris and Estonian Criminal Procedure

Jaan Ginter
pp. 64-67

Introduction

Corpus Juris (CJ) is one of the more ambitious projects aimed at unifying the rules of criminal law and procedure of the European Union Member States to combat fraud against EU financial interests. As expressed by the authors in the Explanatory Memorandum to CJ, “[t]his is not a criminal code, nor a unified code of European criminal procedure made directly applicable everywhere by European courts set up for the purpose. [It] is a set of penal rules, which constitute a kind of corpus juris, limited to the penal protection of the financial interests of the European Union, designed to ensure, in a largely unified European legal area, a fairer, simpler and more efficient system of repression”*1.

CJ is a response to the widely criticised but still flourishing anomaly, that national borders are open (and will soon be opened for Estonia) to fraud artists, but the very same borders are still an effective barrier against the very agencies fighting fraudulent activity.

CJ includes not only substantive criminal law regulation, but also the procedure by which the law is to apply. The most ambitious innovation is the creation of a European Public Prosecution Service (EPP). The EPP will be composed of a European Director of Public Prosecution sitting in Brussels and European Delegated Public Prosecutors based in Member States, appointed by the Member States. The functions of the EPP will be:

(a) to direct the preparatory and final stages of investigation and prosecution,

(b) to prosecute at trial, and

(c) to oversee the execution of sentences*2.

Changes to the trial stage are much less ambitious. Cases will be tried by national courts, CJ establishes only a few rules that the national courts are to follow (e.g. cases should not be tried by jury nor lay judges).

For the time being, CJ has no official status. It is not a draft that has been tabled at any EU institution. But it is indisputable that there is urgent need for steps to be taken in this direction.

This paper is an effort to analyse the issues that will arise if Estonia becomes a Member State of the EU and the EU gives effect, in some way, to the proposed version of CJ.

The paper focuses on three major points:

(1) conflict between CJ and the Estonian Constitution;

(2) conflict between CJ and the Estonian Code of Criminal Procedure;

(3) influence of different international and supranational instruments on national rules of criminal procedure.

Corpus Juris and Estonian Constitution

The first issue under this heading is, of course, state sovereignty. The passage into force of CJ by an EU institution to have effect on Estonian territory and the executive power of the future European Public Prosecution Service will be in conflict with the Estonian Constitution. This conflict will probably disappear when amendments to the Constitution which are contemplated in the current phase of preparations for EU membership will be adopted. It is generally accepted that amendments thereto are urgently needed to enable Estonia’s membership.

In some EU Member States, serious debates on the issue of sovereignty have been held since the spheres of criminal law and criminal procedure are argued to be inherent to sovereignty and that intrusion of supranational institutions in this area would be in discord with state sovereignty. Estonia has experienced less debate since the Constitution is in need of amendment anyway and as such, the inclusion of criminal law and criminal procedure within the raft of possible EU legislation has attracted no hostile attention. At this point, there have been no indications that any significant group claims a need to exclude criminal law and criminal procedure.

Another important issue is the scope of procedural rights guaranteed by the Estonian Constitution. There are some situations in which the Estonian Constitution would offer broader procedural guarantees than CJ. The most significant among them is the issue of CJ expanding the scope for pre-trial detention. Article 20(3g) of CJ allows the European Delegated Public Prosecutors to request for a person to be remanded in custody [...] where there are:

  • reasonable grounds to suspect that the accused is charged with one of the offences defined in CJ; or
  • good reasons to believe it necessary to stop the accused from committing such an offence; or
  • good reasons to believe that the accused will flee*3.

    § 73 of the Estonian Code of Criminal Procedure (ECCP) permits use of pre-trial detention only if it is necessary:

  • for prevention of evasion from criminal procedure; or
  • for prevention of commission of crime. *4

    Clearly, the language employed in the ECCP is much narrower than the language in CJ. § 73 of the ECCP does not permit pre-trial detention if the only ground for such detention is that the person is charged with a serious criminal act *5.

    This difference between CJ and the ECCP is more surprising when considering the fact that the language employed in the European Convention on Human Rights (ECHR) and in the Estonian Constitution (the provisions of the ECCP were amended to accord with the Constitution) is remarkably similar. In the Explanatory Memorandum to CJ, the authors state that their “proposals (for the requirements for remand in custody) directly follow the provisions of Article 5(1c) of the ECHR.*6

    Article 5(1c) of the ECHR states that “no one shall be deprived of his liberty save in the following cases in accordance with a procedure prescribed by law:

    [...]

    the lawful arrest or detention of a person effected [1] for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or [2] when it is reasonably considered necessary to prevent his committing an offence or [3] fleeing after having done so”.

    § 20(1) of the Estonian Constitution states that “everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty except in the cases and pursuant to procedure provided by law:

    [...]

    [1] to prevent a criminal or administrative offence, [2] to bring a person who is reasonably suspected of such an offence before a competent state authority, or [3] to prevent his or her escape.”

    The language employed in the Estonian Constitution is also somewhat more narrow than the ECHR language as there is no indication in the Constitution that pre-trial detention is permitted in cases where there is only a probability that detention will prevent a crime or escape. As discussed above*7, the courts have not interpreted the difference as a of high standard of proof requirement. In all other aspects, the language of the two documents is virtually identical.

    Nevertheless, CJ and the ECCP have found very different guidelines from these similar wordings. The ECCP has found that “to bring a person who is reasonably suspected of a particular offence before a competent state authority” means that for this purpose, only short-term detention is available in order to bring a person into court or to the police and does not permit detention between particular stages of investigation or prosecution and trial. In contrast, CJ has found that “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence” means that remand in custody is permissible for longer periods (up to 6 months, renewable for 3 months).

    This conflict between CJ and the Estonian Constitution may be overcome by narrower interpretation of Article 20(3g) of CJ or rephrasing of Article 20(3g) to be closer to the ECHR wording.

    Corpus Juris and Estonian Code of Criminal Procedure

    The authors of CJ emphasise equal treatment of all offenders committing crimes against the financial interests of the EU*8. Corpus Juris will, to a certain extent, guarantee equal treatment of offenders prosecuted by the EPP*9. But introduction of CJ will create inequality between treatment of offenders prosecuted by EPP and offenders prosecuted by national authorities.

    Inequality will also emerge in the use of pre-trial detention discussed above. Article 20(3g) of CJ permits remand in custody if there are “good reasons for believing it necessary to stop him from committing such an offence [i.e. one of the offences defined in Articles 1–8 of CJ]”*10. But during the investigation and prosecution, these crimes are not the only ones and may not even be the most probable ones a fraud artist under investigation/prosecution is inclined to commit. The list of crimes does not include crimes against the justice system such as, inter alia, tampering with evidence or bribing witnesses.

    This aspect of the current version of CJ will cause unequal treatment by giving narrower grounds for remand in custody than national rules of criminal procedure do. The ECCP permits pre-trial detention to prevent not only crimes similar to those a person is under investigation for, but also other crimes (including, of course, crimes against the justice system)*11.

    Major differences that give rise to unequal treatment will emerge in the cases of extinguishing prosecution by expiry of the limitation period. According to Article 22(2a) of CJ, “there is a limitation period of five years”*12 for crimes defined in CJ. According to §§ 53(1) and (2) of the ECCP, the limitation period for similar crimes is the same, i.e. five years. Hence, at first glance there seems to be no difference at all. But a difference does emerge once the calculation of the commencement of the limitation period is explored.

    Article 22(2a) of CJ provides that the limitation period of five years is “calculated from the day when the offence was committed if, within this time, there has been no investigation or prosecution; if investigation or prosecution has taken place, the offence is only time-barred from five years after the last act of investigation or prosecution”*13. § 53(2) of the ECCP provides that the limitation period is always calculated from the day the offence was committed unless the suspect commits a new crime, in which case the limitation period starts to run from the time the most recent crime was committed. § 53(3) of the ECCP provides that if the suspect hides himself or herself from an investigation or the court, the running of the limitation period is suspended for the period when the suspect was in hiding. Running the limitation period will resume upon the suspect’s surrender. No acts of investigation or prosecution have any effect on the calculation of limitation period.

    Consequently, prosecution by the Estonian authorities would extinguish by expiry of the limitation period often much sooner than prosecution of similar cases by the EPP. This is one area in which reform of the Estonian criminal procedure could follow the model offered by CJ. There have been a number of high profile complex economic crime cases in which the prosecution was extinguished by expiry of the limitation period while the investigation was active, but unable to gather all the needed evidence.

    Another conflict concerns the use of lay judges in national courts hearing cases prosecuted by the EPP. Article 26(1) of CJ provides that “[t]he courts must consist of professional judges, specialising wherever possible in economic and financial matters, and not simple jurors or lay magistrates”*14. § 23(2) of the ECCP requires lay judges to participate in all trials where the maximum penalty is more than three years’ imprisonment i.e. in all cases similar to crimes defined in CJ (maximum penalty available for CJ crimes is 5 years’ imprisonment).*15

    Of course, it is not definite whether it is advantageous or disadvantageous for a defendant to be tried by a court comprised exclusively of professional judges (the authors of CJ claim that by excluding jurors and lay judges they endeavour to avoid both acquittals of the guilty and convictions of the innocent*16). But if an accused would prefer to be heard by lay judges but procedural rules do not permit it in his or her case, while in similar cases prosecuted by national authorities defendants are granted trial by lay judges, he or she may justifiably feel that he or she has not been equally treated.

    There are certain differences in authorisation of coercive measures which restrict the rights and fundamental freedoms recognised by the ECHR. Article 25(2) of CJ requires authorisation by a judge*17, whereas the ECCP permits authorisation by a prosecutor in certain cases, e.g. search authorisation by a prosecutor (§ 139(2) of the ECCP).

    This is another conflict disagreement in which the reform of Estonian criminal procedure will most likely follow the CJ model.

    There are significant differences in sentencing in the case of concurrent offences. Article 17(1) of CJ allows for an increase of up to three times the penalty that would have been incurred for the most serious offence. The limit to this is that the penalty shall not exceed the sum of the penalties which could have been inflicted separately for each offence*18.

    Section 40 of the Estonian Criminal Code (ECC)*19 limits the maximum penalty to be that for the most serious offence. Hence, the penalty under the ECC can not be as severe as the penalty for a similar set of crimes prosecuted by EPP.

    Some problems will emerge if a person has committed several connected crimes, some of them prosecutable by EPP but others not, e.g., forgery, violent crimes or crimes against the justice system. The most difficult problem will be the co-ordination of two separate investigations. But there will be also cases of unequal treatment. As discussed above, the rules for sentencing for concurrent offences are different and thus, the sentencing result will depend on which crimes are tried first. It is obvious that the total sentence for concurrent offences should not depend on the variable of which prosecutor (European Delegated Public Prosecutor or national) manages to have his or her prosecution tried first.

    Influence of Different International and Supranational Instruments on National Rules of Criminal Procedure

    Different international and supranational instruments (including the proposed CJ) have important influence on the development of national rules of criminal procedure. Such influence is especially significant when a national system is going through reform as is the case in Estonia.

    In analysing the influences of different instruments on national rules regarding the procedural rights of suspected, charged and accused persons, an interesting hypothesis emerged. Some instruments (e.g. the ECHR) establish the lower limits of these guarantees while some others (CJ among them) establish the upper limits that confine the extent to which national systems may grant further procedural rights (see Figure 1).

    Figure 1. Influence of different international and supranational instruments on national rules of criminal procedure


    Notes:

    *1 Corpus Juris, Mireille Delmas-Marty ed. – Ed. Economica – Paris, 1997, p. 40 (hereinafter Corpus Juris).
    *2 Ibid., p. 82.
    *3 Ibid., pp. 90–92.
    *4 Code of Criminal Procedure – RT I 1995, 6, 69; RT I 1998, 51, 756.
    *5 Another difference is that § 73 of the ECCP does not indicate that the level of certainty for remand in custody does not need to be one hundred percent certain. Article 20(3g) of CJ employs language such as “reasonable grounds to suspect” and “good reasons for believing”. The ECCP language is that remand in custody is permitted only if it is necessary to prevent escape or commission of a crime. This difference in language suggests that there may be differences between the standards of proof employed in determination of grounds for remand in custody. In the Estonian cases the standard of proof has not been interpreted to be extremely high. Judging from the high percentage of accused persons awaiting trial in custody, the necessity does not need to be proved on extremely high standard of proof. The standards suggested in CJ “reasonable grounds to suspect” and “good reasons for believing” are, in reality, probably not more lenient than the standard actually employed by the Estonian courts.
    *6 Corpus Juris, p. 94.
    *7 See: note 5.
    *8 Corpus Juris, pp. 30–32.
    *9 The principle of equal treatment can not be satisfied completely even in these cases: (1) the offenders will be tried and sentenced by national courts and, as there will be no avenue for appeal to the European Court of Justice in Luxembourg, there will be no process by which to eradicate differences of treatment among national courts; (2) some inequality will inevitably result from differences in the prison system, e.g. five years of imprisonment in a Swedish prison will be much less severe punishment than the same five years in an Estonian prison.
    *10 Corpus Juris, p. 92.
    *11 There is also a slight difference in the potential length of pre-trial detention. Article 20(3g) of CJ permits remand in custody “for a period of up to 6 months, renewable for 3 months”. But § 74 of the ECCP permits pre-trial detention for a period of up to 6 months. That period may be extended to one year.
    *12 Corpus Juris, p. 96.
    *13 Ibid.
    *14 Ibid., p. 114.
    *15 Ibid., p. 62.
    *16 Ibid., p. 118.
    *17 Ibid., p.112.
    *18 Ibid., p. 76.
    *19 The Criminal Code – RT I 1997, 21, 353; RT I 1998, 59, 941.






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