III/1998
ISBN 9985-9146-1-9
Issue
1. Concepts and Present Legal Situation
In Estonian, international criminal law is a general concept comprising all fields of the law which, on different levels, pertain to this legal phenomenon. The following is a list of these fields:
(a) criminal law in the relations between states, as the international application of domestic criminal law. The prevalent German expression internationales Strafrecht is not applicable in Estonian legal terminology (international criminal law), since it is not linguistically possible to distinguish it from another expression, Völkerstrafrecht.
(b) the aspects of personal application of domestic criminal law relating to international law (diplomatic immunity).
(c) transnational criminal law as the law of international agreements and conventions and the criminal law of international organisations. In Estonian, the expression international criminal law is used.
(d) supranational criminal law as a component of international law realised directly beyond the bounds of domestic law. In the description of this field of the law, the term international criminal law is also used (c.f. the German Völkerstrafrecht)
Herein the expression international criminal law will be used for reference to the general concept.
Estonia’s existing criminal law stems from Soviet law, more precisely the Soviet Criminal Code of 1961. After regaining its independence in 1991, Estonia adopted a new version of the Criminal Code, which remained, however, broadly bound to the existing Soviet criminal law. *1 The above-mentioned Code is still in force. At present, draft new General Principles of the Penal Code have been completed, and draft Special Principles are also nearing completion, the aim of which is to create a new, European-style criminal law in Estonia, based on the rule of law. An important part in the creation of this new criminal law is played by questions of international criminal law, the successful solution of which is necessary for Estonia’s integration into the European legal system.
2. Interstate Criminal Law
As a result of the fact that the Soviet Union was a confederation, legal problems arising between the different republics were of importance in criminal law and legal practice, since a different criminal code existed in each union republic (although without significant differences). Subsection 4(1) of the Criminal Code of the ESSR imposed the territoriality principle on both foreigners and citizens of the Soviet Union who, although not living permanently on Estonian territory, committed a crime in Estonia.
As a consequence of the peculiarity of being a union, the implementation of the territoriality principle meant, among other things, that the Estonian criminal code was applied (i.e. an individual was convicted according to the paragraphs of the code) even when that individual was prosecuted on the territory of another union republic. And vice versa, if an individual was prosecuted on Estonian territory, and a crime was committed elsewhere, the criminal code of the place where the crime was committed was applied. *2 In this context, problems concerning the extradition of criminals from one union republic to another were of course unknown.
The criminal code did not specifically regulate the question of the validity of a criminal law in the event that the crime took place on a ship or an aeroplane. In dogmatics and legal practice, the territory of the ESSR included ships on the high seas bearing the Soviet flag and having their port of registry in Estonia, as well as civilian aeroplanes bearing Soviet insignia outside the territory of the Soviet Union and foreign countries, whose airport of origin was in Estonia. Soviet territory included warships and warplanes bearing Soviet insignia anywhere on the globe. *3
Subsegtion 4(2) mentioned above established that in the case of a crime being committed by the diplomatic representative of a foreign country or other such person possessing immunity who, according to an international agreement, is not subject to Soviet law, the question shall be resolved through diplomacy.
At the same time, Soviet criminal law contained (§ 5 of the foundations of the criminal law of the Soviet Union and its union republics and the pertinent paragraphs of the union republics’ criminal codes, among which § 5 of the Criminal Code of the ESSR), an absolutely unacceptable regulation, from the point of view of democratic criminal law, which was in conflict with the principle of ne bis in idem. This provision namely established, in addition to the territorial principle, a nationality principle as a criteria for the validity of a criminal law, as a result of which citizens of the Soviet Union or stateless inhabitants of the Soviet Union could be held accountable, according to § 5 of the Criminal Code, for a crime committed abroad, even if the crime was committed abroad and the individual was also prosecuted there. The justification provided for such double punishment was the right of the Soviet state to demand that a Soviet citizen always “answer to its state”. *4
In 1992, the reform of the newly-independent Estonia’s criminal law removed this totalitarian provision. The new wording of § 5 of the Criminal Code established that both citizens of the Republic of Estonia and stateless persons are subject to the force of the present code if international law or an international agreement provide for their punishment according to the criminal law of the Republic of Estonia.
In the interests of both integration with the European legal system and the modernisation of Estonia’s criminal law, significant changes to the provisions regarding the territorial validity of the criminal code were made with the act of the 19th of November, 1997. *5 A new ninth part was added to the Code of Criminal Procedure, entitled “International Co-operation” (§§ 391–408). *6 Section 4, which regulates the territorial validity of the Code, has been significantly elaborated, and § 5, which regulates the force of the Criminal Code as regards crimes committed outside the territory of the Republic of Estonia, has been entirely rephrased.
The territorial validity of Estonian criminal law is still defined by the principle of territoriality. It is specified that the Estonian Criminal Code also applies to those individuals who have committed a crime on a ship or aircraft registered in the Republic of Estonia, regardless of the location of the ship or aircraft at the time the crime was committed (§4(1)). The above regulation largely coincides with §§ 6 and 7 of the draft new Penal Code.
The existing law retains the earlier wording of §4(2), which establishes diplomatic immunity. Here one must also take into account the fact that Estonian criminal law does not recognise the indemnity of members of parliament under substantive law. There is a provision in the Constitution (§ 62), however, according to which members of parliament are not legally accountable for voting and political statements carried out as part of their official duties. According to the Constitution, the law of 18 October 1995 establishes the immunity of high-ranking government officials, namely the president, members of the government, members of parliament, the Comptroller General, the Chancellor of Justice and the Chairman of the Supreme Court in procedural law. *7
According to § 5, the Estonian Criminal Code applies also to crimes committed outside Estonia, on the general condition that such an act is also punishable under criminal law in the place where the act was committed or if no country’s criminal law is in force in the place where the act was committed.
Any person (be they citizens of Estonia, foreign subjects or stateless persons) may be held accountable under the Estonian Criminal Code for a crime committed abroad, if:
(a) on the grounds of a foreign treaty, an application has been made for that person to be held criminally liable (§ 5(1)1), or
(b) the act was committed by a citizen of Estonia, by a legal person registered in the Republic of Estonia or against the Republic of Estonia (§5(1)2).
Clause 5(2)1) of the Criminal Code establishes the nationality principle for persons who have committed crimes abroad and were, at the time the crime was perpetrated, citizens of the Republic of Estonia or became citizens after the perpetration of the crime. The Criminal Code of Estonia is likewise applicable to crimes committed outside Estonia (§5(2)2) by persons who were, at the time a crime was perpetrated, foreign subjects or stateless persons, yet were apprehended in Estonia and do not qualify for extradition.
In addition to the above cases, the Estonian Criminal Code is applied regardless of the criminal law of the place of commission in the case of acts which, pursuant to a foreign treaty of the Republic of Estonia, are to be punished even if the crime was committed outside Estonia (§5(3)).
The above-mentioned regulation is also similar to that contained in the General Principles of the draft new Penal Code (§§ 7 and 8). In addition to that mentioned above, the draft also foresees a provision (§ 9), according to which the criminal law of the Republic of Estonia is applicable regardless of the law of the place a crime was committed in the case of acts which are punishable under the Estonian Criminal Code and are directed against such important legally protected interests as the health and well-being of the population, the performance and defensive capabilities of the governmental power of the Republic of Estonia, confidence in the rule of law and the environment.
Besides changes in the criminal code, the above-mentioned Act dating from 19 November 1997 made significant additions to the Code of Criminal Procedure, resolving above all questions of the extradition of criminals and other questions of legal co-operation. *8 Changes demonstrate that the integration of the Estonian legal system has begun even before the adoption of the draft new Penal Code, and some of the provisions of the above-mentioned draft have already been put into practice in existing law.
3. Transnational Criminal Law – Foundations and Estonian Criminal Law
As mentioned above, by transnational criminal law, I mean international agreements and also the criminal law of international organisations. The aim of such a criminal law is to advance international co-operation in the field of crime-fighting on the transnational level. European Criminal Law also falls under this category – be they Council of Europe Conventions or EEC Directives. The compulsory nature of the latter norms does not, however, make the criminal law they contain into supranational criminal law or criminal law in an international law sense. *9
Transnational criminal law is based on the need to protect specific interests resulting from close international contact and interests resulting from the integration process, international or transnational legally protected interests. These interests are either not protected under domestic criminal law, or if they are, then that protection requires international coordination. Such is the definition of the essence of international legally protected interests as opposed to their formal or legal definition. According to the latter, international legally protected interests are defended by an international convention or the legal act of an international organisation.
The theoretically correct determination of international, transnational and supranational criminal law does not, however, mean that the safeguarding of international legally protected interests belongs solely to the field of transnational criminal law. The development of international criminal law as an aggregate phenomenon also does not have to consist of the preferential development of supranational criminal law as a component of international criminal law (although the need to develop the international criminal law branch is beyond doubt).
Present practice instead demonstrates the effectiveness of the combined or comprehensive defence of international legally protected interests. This is demonstrated firstly by attempts to develop model international criminal codes. *10 Secondly, efforts have of late begun to be made to create a supranational institute of criminal law similar to an international criminal court for combating crimes against humanity and war crimes (for instance the so-called Yugoslavia tribunal). At the same time, it is clear that the two above-mentioned branches of international criminal law require support from the third – interstate criminal law, i.e. a branch regulating the interstate enforcement of domestic criminal law. It would be very difficult to put into practice a direct personal criminal liability under international law, if this were not supported by international criminal law with its principle of Weltrecht, i.e. universality and the concept of the Weltverbrechen. The support of the latter is required above all to guarantee international criminal law the attribute of legitimate punitive authority. Such punitive authority, however, may exist only in a country in which it is exercised by a democratically-elected representative assembly – a parliament. *11
In accordance with § 3 of the Estonian Constitution, the generally recognised principles and norms of international law are an inseparable part of the Estonian legal system. In the case of a conflict between domestic and international law, the international legal norm has the force of law (§ 123 of the Constitutioon). At present, Estonia has joined almost all of the more significant international conventions dealing with the protection of international legally protected interests.
Estonian criminal law as a component of transnational criminal law may be observed from two angles: in the context of the Council of Europe conventions and in the context of European Community criminal law. Within the boundaries of these two, one must give primary attention to the following questions: the concept of the crime, the concept of punishment and other sanctions or measures and the protection of the primary international legally protected interests.
Since a reform of criminal law is presently under way in Estonia, questions have herein been examined from two angles – considering on the one hand the existing law and on the other hand the draft new Penal Code.
4. Definition of Offence
4.1. General Concept
In many European conventions, such as, for example, the European Convention on the Transfer of Proceedings in Criminal Matters (TPCM), the European Convention on Extradition (CE), the European Convention on Mutual Assistance in Criminal Matters (MACM), and the European Convention on the Suppression of Terrorism (ST), the implementation of these conventions is connected with the general concept of the offence or a specific type of offence (political offence, financial offence, etc.).
Article 1 of the European Convention on the Transfer of Proceedings in Criminal Matters (TPCM) defines two main attributes of the concept of the offence:
(a) the presence of the corpus delicti in criminal law (apparently criminal law or the criminal code in the narrow sense of the term is referred to here);
(b) that it be a corpus delicti prescribed by other criminal laws, above all administrative criminal law or that which in general corrective law is defined as an administrative offence – on the condition that if the punishment is administered by an administrative body, it may be appealed through the courts.
There are two codes in the present legal system of the Republic of Estonia – the Criminal Code and the Code of Administrative Offences (there are no other corrective norms beside these). The first is a criminal law in the narrower sense of the term and corresponds to the formulation contained in Article 1a of the TPCM, acts treated in criminal law. The second, the Code of Administrative Offences, contains offences for which both arrest and money fine are prescribed. In essence, a person found guilty has the right to appeal in both cases (administrative arrest is administered by an administrative court, and it is as a rule possible to appeal a decision made by it to a higher administrative court).
Here Estonia has made a reservation in the ratification of the TPCM (§2(3) of the Ratification Act,), according to which the Republic of Estonia shall not, pursuant to Article 41 of the Convention and point 1g of the Appendix, implement Articles 30 and 31 (multiplicity of procedures) for acts which, according to Estonian law or that of another relevant state, may be punished only by an administrative body. *12
Thus in the case of Estonia one must, according to the list provided in Article 1a and Appendage 3 of the TPCM, take into consideration the option chosen by the Federal Republic of Germany, where two categories of offences exist: crimes (Verbrechen, Vergehen) included in the Criminal Code and other criminal laws, and administrative offences included in the Misdemeanours Act and other relevant laws.
It has, however, been decided to change the system presently existing in Estonia, de lege ferenda. Namely, the draft General Principles of the Penal Code foresee the combination of the present Criminal Code and the Code of Administrative Offences. Thus the new penal law will, analogously to the existing criminal law, include all existing crimes and administrative transgressions (under the general name misdemeanours), whereas crimes will be found only in the Penal Code (there will be no criminal laws other than the Penal Code). Existing administrative offences (with the new name misdemeanours) will be contained in both the Penal Code and various other laws. Thus, whether misdemeanours are to be considered de lege ferenda crimes within the meaning of Article 1a and Appendage 2 of the TPCM depends on whether it is possible to appeal the punishments meted out for them (this question will be resolved in the new Code of Criminal Procedure). Therefore, in this context the Estonian alternative resembles the French Code pénal, which in accordance with Appendage 3 of the TPCM defines a criminal offence as a contravention de grande voirie.
The concept of the crime is defined in a much narrower manner in Article 2.1 of the European Convention on Extradition, where it is defined as:
(a) an offence punishable by deprivation of liberty according to the law of the requesting Party and of the requested Party;
(b) an offence punishable by imprisonment of at least four months on the grounds of a conviction made in the territory of the requesting Party.
According to existing Estonian criminal law, only offences may be seen as such acts. Pursuant to §23(1) of the Criminal Code, the minimum duration of imprisonment as a form of deprivation of liberty is 3 months. The other form of the deprivation of liberty, arrest, a short period of confinement, may, under §23-2(1) of the Criminal Code, be administered for up to 3 months. Pursuant to §23(1) of the Code of Administrative Offences, administrative arrest may be administered for up to 30 days.
Thus it is possible, de lege lata, to apply arrest – essentially a short period of confinement – not only for a crime, but also for an administrative misdemeanour (although in the latter case indeed only a court, and namely an administrative court, may do so). In contrast, the new general part of the draft Penal Code establishes the punishment of deprivation of liberty only for offences (according to § 48 of the draft, the minimum duration of a fixed-date imprisonment is 1 month).
4.2. Individual types of offences
In addition to the above-mentioned general conceptual attributes, European conventions also contain references to individual crimes, especially political, financial and military offences.
(a) A political offence may be defined as an attack on the political order of a state, with the aim of changing the internal or external power relationships of a state. *13 European conventions do not specifically define the concept of the political crime (c.f. Article 11d of the CE; Article 3 of the CE and Article 1 of the supplementary protocol; Article 2 of the MACM, Articles 1 and 2 of the ST.
Several positive and negative attributes derive from the above-mentioned conventions, which help one to more precisely define the nature of a political crime. One positive attribute is Article 3.2 of the CE, according to which one of the attribute of a political offence is punishment is based on his race, religion, nationality or political opinion. A contrario, it ensues from Article 3.3 of the same convention (taking the life of a Head of State or a member of his family shall not be deemed to be a political offence) that a political offence is among other things a seditious offence, inasmuch as an offence directed at a Head of State is also directed at the supreme power of a state. *14
As a negative attribute of the definition specified in the conventions as to what constitutes a political offence, certain types of crimes are named which, in the given context, are not political. These are: taking the life of a Head of State or a member of his family (Article 3.3 of the CE), genocide and war crimes (Articles 1a–c of the supplementary protocol to the CE); air terrorism (Articles 1a–b of the ST); an attack against an internationally protected person (Article 1c of the ST); offences against personal liberty (Article 2.1 of the ST); any other attack against the life, health or liberty of a person (Article 2.1 of the ST); any other serious damage to property, which endangers many people (Article 2.2 of the ST). *15
One must also keep in mind Article 3.4 of the CE, whereunder the definition of a political offence provided in Article 3 of the convention does not affect other obligations of the Contracting Parties under any other international convention of a multilateral character. This clearly refers to the fact that the definition of a political offence
This provision is somewhat in conflict even with Article 1 of the ST, which defines the negative attributes of the concept of the political offence not only in connection with the concept of terrorism, but precisely in connection with a field regulated by another convention, extradition. It may even be argued that most of the attributes of the definition of a political offence derive namely from the ST, and that pursuant to the principle of the unity of the legal system, the concept of the political offence should be formulated on the basis of all of the above-mentioned, and other, European conventions.
As is generally known, political offences may be divided into purely political offences and relative political offences. The first are aimed directly at the status quo, capacity or security of a state, an act directed against the political organisation or government of a State which contains no element of common crime – uprising, espionage, etc.
In existing Estonian criminal law, such corpus delicti as offences directed against the independence of the Republic of Estonia (§ 62), espionage (§ 63), etc. belong to the class of political offences, according to the second chapter of the Special Principles of the Criminal Code entitled “Seditious Offences”. In this point, one must take into consideration that the existing Criminal Code is a successor of Soviet criminal law, and that the above-mentioned chapter represents the codification of the Soviet Union’s Law on Seditious Offences of 25 December 1958. Under this chapter, all seditious offences were divided into two large groups: particularly dangerous seditious offences and other seditious offences. The latter included (and are still present in the chapter on seditious offences) such corpus delicti as smuggling, counterfeiting, the violation of regulation governing rail, sea and air transport (§ 83) and others which may definitely not be considered to be political offences only as a result of the structure of the Special Principles of the Code. While the draft special principles of the new Penal Code have not yet been completed, it is clear that in Estonia’s new criminal law, such corpus delicti will be located according to their classification, in chapters on economic crimes, transport-related crimes and others.
A relative political crime is an offence which fulfils either both the corpus delicti of an ordinary offence and a political offence, or that of only an ordinary offence, but which is in the latter case connected with political elements. An offence may also, according to a country’s specific provisions for the administration of punishment, be considered political when either one offence corresponds to several paragraphs in the criminal code or several offences correspond to several paragraphs, and one component offence is political. An offence may be deemed political even when it is designated as a conventional crime, although the subjective attributes of its corpus delicti (intent, motive) are political. *16 In the existing and future correctional provisions of Estonian criminal law, the institute of concurrence will not differ from the general scheme, although according to § 40 of the Criminal Code, different punishments are added according to either the accumulation or absorption principle, and in contrast to the German Criminal Code, the term aggregation of overall punishment.
The relative political crime refers to situations in which a crime may be considered political due to the wide scope of the state’s criminal legal regulation and the over-politicisation of social life, including criminal law. *17 According to such a totalitarian criminal law, even such crimes characteristic of Soviet criminal law as for example crimes against property (crimes against so-called ‘socialist’ property), economic crimes (entrepreneur-like behaviour), white collar crime (making additions to state plan accounts), etc. It must be emphasised that such corpus delicti were annulled with the reform of Estonian criminal law in 1992.
In ratifying the ST, Estonia has made reservations (§ 2 of the Ratification Act), according to which Estonia reserves the right, pursuant to Article 13(1) of the Convention, to refuse to extradite in the case of any crime mentioned in Article 1 of the Convention which it considers to be a political crime or a crime related to a political crime. *18
(b) Military offences are mentioned in Article 4 of the CE (offences under military law which are not offences under ordinary criminal law). The existing Estonian criminal law has taken the view that the only source of criminal law is the Criminal Code, and that all criminal laws will be codified. Thus, Estonian criminal law lacks the classification of fundamental and branch criminal law (c.f. the German Kernstrafrecht, Nebenstrafrecht). This system is also perpetuated by the new Penal Code. This means that the Special Principles of the Criminal Code contain a chapter on military crimes, which must be followed within the meaning of Article 4 of the CE.
(c) The concept of financial offences is defined in Article 5 of the CE (in the wording of the second additional protocol) as offences related to taxes, duties, customs or exchange. Under existing Estonian criminal law, such crimes are located in two separate chapters of the Special Principles of the Code. Most of them are contained in the chapters on economic and white collar offences, which include such corpus delicti as the concealment of revenue and tax evasion (§ 148-1), the falsification of accounting data (§ 148-5), the communication of misinformation regarding a public securities issue, etc. Smuggling (§ 76), production of counterfeit money (§ 85), forging of a precious metal hallmark (§ 85-1) and violation of the rules for the performance of currency transactions (§ 86) are also essentially economic crimes, and must also be treated as such within the meaning of Article 5 of the CE, although these corpus delicti are located in the chapter on seditious offences (c.f. also point (a) above)
(d) Offences against a public figure (or crimes committed by the same) are provided in Article 9 of the CE (in the wording of Article 2 of the additional protocol). This concept is very difficult to define, and allows very broad possibilities for interpretation. If one attempts to give the above-mentioned concept a specific meaning and at the same time remains within the parameters set down by criminal law, one may, within the context of the Estonian legal system, define the following individuals as public figures:
Of course, such a definition is very restricted. Another possibility is to leave the concept of the public figure open and define it separately in each case.
4.3. Sanction
In accordance with Article 1.b of the TPCM, a sanction is any punishment or other measure which is administered for an offence (c.f. point 4.1 above on the concept of the crime). Here one must assume that the concept of sanction should be broadly interpreted and that sanction as the legal outcome of an offence does not consist only of measures administered for culpable behaviour.
The concept of sanction is also expressed in Article 2.1 of the CE, where the terms deprivation of liberty and detention order are mentioned. The latter concept is incomprehensible in the context of the Estonian legal system; for example the German translation of the convention uses a much more intelligible construction: deprivation of liberty (Freiheitsstrafe) and instruments of safeguarding and correction (Massregeln der Sicherung und Besserung). *19 In German criminal law, the latter signify diverse sanctions which may accompany punishment or also result from non-culpable behaviour (the placement of an individual in an appropriate institution as a result of social degradation, the treatment of a mentally deranged person under forensic psychiatry, etc.).
Here one must consider that the Estonian criminal law does not recognise the parallel system of sanctions (Zweispurigkeit) particular to German criminal law. In the Estonian context, sanctions may thus be divided into two broad groups:
First, legal outcomes applied for culpable behaviour, which presume the conviction of the individual and which are in turn divided into two sub-groups, depending on whether this involves punishment in the precise meaning of the word (fine and deprivation of liberty) or other measure accompanying conviction – the exemption of an individual from punishment and his release on bail (§ 50 of the Criminal Code) or the application of educational methods of a persuasive nature towards a minor (§ 61). In the case of minors, however, one must consider that, according to the Act of 28 January 1998, *20 a minor may be exempted from criminal liability and his or her case may be given to a juvenile commission to be settled. One must assume that the persuasive measures which may be applied to a minor (sending a minor to a correctional school, conciliation, the imposition of certain obligations, etc.) are a measure within the meaning of Article 1b of the TPCM.
One must also, according to §§ 47 and 47-1 of the Criminal Code, consider supervision requirements and obligations applied to a person on probation as measures within the meaning of Article 1b of the TPCM. Estonia’s existing criminal law uses the so-called Franco-Belgian sursis option in the use of the institute of probation, in which the individual is convicted and administered punishment, but the punishment is not executed. According to the draft new Penal Code, the Anglo-American version, probation, is also provided for, in which case an individual is convicted without punishment being administered.
In accordance with Article 1b of the TPCM, one must apparently also treat an individual who has fallen seriously and irrecoverably ill (both somatically and mentally) after the making of a judicial judgement, and whom the court has thus exempted from serving punishment, as a sanctioned individual (§ 52 of the Estonian Criminal Code).
The second broad group is composed of sanctions applied for non-culpable behaviour. There is a similar measure in Estonian criminal law – the treatment of a mentally deranged person under forensic psychiatry (§ 59 of the Criminal Code). If one takes this sanction to also be included in Article 1b of the TPCM, it can not be said that the referred provision is well formulated (at least in the Estonian translation of the convention). The compulsory treatment of a mentally ill person cannot by any means be considered to be a measure administered for an offence. A mentally ill person, similar to a minor having not reached the age of criminal liability (in Estonia an individual below the age of 15, as a rule) does not commit an offence in the legal sense of the word. In this case one is dealing with a wrongful act, for which a sanction may be applied, but punishment may not. Only a punishment may be administered, whereas a sanction is applied. The pertinent parts of Articles 2.1 and 2.2 of the Extradition Convention and the English and German texts of the Convention on the Extradition of Persons Serving Punishment are indeed thus formulated (punishment or measure involving deprivation of liberty ordered by a court, freiheitsentziehende Strafe oder Massnahme, die von einem Gericht ...verhängt worden ist). *21
From the point of view of the concept of sanction, Article 1b of the TPCM, where sanction is given a broad definition, and clauses (c) and (f) of Article 8.1, where only punishment is mentioned, are not in agreement.
In ratifying the TPCM, Estonia has made a reservation (§2(2) of the Ratification Act), whereunder Estonia (citing Article 41 and Article (a) of Appendix 1 of the Convention) will not adopt Article 25(2) of the Convention. Thus in the case of the authority grounded in Article 2, a sanction applied in a requested state may be more stringent than that of a requesting state. *22
5. Safeguarding of Most Important International Legally Protected Interests in Estonian Criminal Law
It is very difficult to precisely and exhaustively define all international legally protected interests and thus the offences attacking those interests. Altogether, one may find the attributes of, or references to the punishment of international offences in more than 300 conventions. As is known, agreement was reached, however, that there exist 20 corpus delicti of international offences *23 , although one may assume that this list is not closed. Thus computer crimes, money laundering, etc. must certainly be considered international offences.
Some of these, presumably the most significant international offences, will be examined below.
5.1. Genocide
The concept of genocide is derived from the UN Convention of 9 December 1948, and this formulation is contained in the criminal codes of many countries (for example § 220a of the StGB).
The Republic of Estonia acceded to the UN Convention on Genocide with the decision of 26 September 1992 of the Supreme Council (the Parliament at that time). *24 A new first chapter of the Special Principles of the Criminal Code, entitled “Crimes against Humanity and War Crimes” was inserted on 9 November 1994. § 61-1 of this Chapter establishes liability for crimes against humanity, including genocide. *25
The attribute political group is missing from the definition of genocide. This definition was contained in the initial draft of the convention, but due to pressure from the Soviet Union, it was left out of the final version. *26 Estonian legislators indeed used the definition provided in Article II of the UN Convention as their starting point, but have all the same created a slightly broader definition of the concept of genocide. They have namely nevertheless introduced, in the following wording, a modification of the attribute political group: a wilful act aimed at entirely or partially obliterating a national, ethnic, racial, religious or other social group, or a group offering resistance to an occupation regime ... The following was likewise added to the list of punishable offences: the deportation or exile of the local population, the deprivation of their economic, political and social human rights or the restriction of those rights during annexation or occupation...
The above-mentioned additions to the ordinary attributes of the corpus delicti of genocide are a result of the historical peculiarities of Estonia (and the other Baltic States), namely the struggle for independence and the mass repressions of the population which followed the Soviet occupation. *27
Responsibility for crimes against humanity and genocide are provided for in the Special Principles of the draft new Penal Code, namely Chapter 1, “Crimes Against Humanity and International Legally Protected Interests”, in § 3 of which (genocide) the attribute other social group, or a group offering resistance to an occupation regime has been retained.
5.2. Promotion of Trade in Human Beings and Prostitution
The UN Convention of 2 December 1949 on the trade in human beings and prostitution defines three acts as punishable: pimping, solicitation and the provision of rooms for prostitution. The Soviet Union had acceded to this convention, although it announced that the social roots of prostitution had been eliminated and that prostitution as a phenomenon did not exist. The criminal codes of the union republics did, however, include one corpus delicti – the keeping of a secret den for thieves or for licentious purposes (§ 201 of the Criminal Code of the Estonian SSR).
With the Treaty of Association between the Republic of Estonia and the European Union of 12 June 1995 (the European Treaty) *28 , Estonia accepted the obligation to co-operate for the prevention of illegal activities also in the fields of trade in human beings and illegal immigration schemes (Article 100). In the Criminal Code, there is indeed no corpus delicti dealing precisely with the trade in human beings, but prostitution is regulated by the following corpus delicti: providing rooms, belonging to an individual, for prostitution (§ 201), involving a minor in prostitution or the use of a minor for the purpose of prostitution (§ 202) and the incitement of an individual to prostitution or serving as intermediary to prostitution (§ 202–6). Prostitution itself is not prohibited in Estonia, although the phenomenon itself is legally unregulated. The only restrictions ensue from the above-mentioned Sections.
5.3. Slavery and Forced Labour
Slavery is a human condition or relationship, over which any of the powers attaching to ownership are exercised. Offences related to slavery are: debt bondage, serfdom, marital bondage, slave labour and sexual bondage. The criminalisation of slavery and related acts are also connected to the protection of human rights. *29 Article 4 of the European Convention on Human Rights prohibits keeping any person in slavery or constraint or requiring a person to do involuntary or compulsory labour.
Under Soviet criminal law, liability was provided for in the case of an individual not working. Thus there were two corpus delicti in the Criminal Code of the Estonian SSR – parasitic way of life (§ 201-2) and vagrancy (§ 201-3). Those corpus delicti were removed from the Estonian Criminal Code during the reform of the system of criminal law in 1992. One may also consider the compulsory labour norm present in the Soviet Criminal Code (§ 26 of the Criminal Code of the Estonian SSR – corrective labour) to be one method of forced labour. This involved the obligation of a convict to work at his previous place of employment or one provided by the body executing the punishment, and 20% of wages went to state revenue. An even more severe form of forced labour was instated with the law of 21 June 1970 (§ 23-1 of the Criminal Code of the Estonian SSR) – probation combined with compulsory labour (an individual was removed from his place of residence, housed in a dormitory and forced to construction or other manual labour). These sanctions were also removed from Estonian criminal law with the 1992 reform of the criminal law system.
At present, Estonian criminal law has no community service – a widespread alternative to the deprivation of freedom – as neither an independent sanction, a substitute punishment nor an obligation applied in the case of probation. This sanction is provided for in the Act on Persuasive Measures for Minors, passed on 28 January 1998 (the Act takes force as of 1 September 1998). *30 A similar sanction is also provided for in the draft General Principles of the new Penal Code. In both cases, community service requires the consent of the convict.
Many corpus delicti treating crimes against the freedom of the person – slavery, deportation to a country in which human liberty is restricted, etc. – are included in Part 6 of the chapter on crimes against person in the draft Special Principles of the Penal Code (“Crimes Against Liberty”).
5.4. Crimes Involving Narcotics
Estonia has ratified the UN so-called Integrated Convention on Narcotics of 30 March 1961. According to Articles 99 and 100 of the European Treaty, Estonia is required to co-operate in the fight against narcotics crimes and in the creation of pertinent laws. In consideration of this, the Narcotic and Psychotropic Substances Act was passed on 11 June 1997. *31
Chapter 11 of the Special Principles of the Criminal Code, entitled “Crimes against the public order and social safety” contains a whole block of narcotics offences (altogether 7 corpus delicti), which have criminalised, among other things, the illegal possession or keeping of narcotic substances (§ 210-1). The possession or keeping of small amounts of narcotic substances is punishable administratively (CAO § 158); if the offence was committed for at least the second time in the year following the application of administrative punishment for a similar activity, criminal liability ensues (§ 202-5). An activity related to the distribution of narcotic substances is punishable under criminal law (§ 210-2); the theft or robbery of a narcotic substance is cited as a delictum sui generis (§ 210-3). Both administrative and criminal punishment (the latter, as in § 202-5, requires a prior administrative decision) may be administered for the illegal planting and cultivation of the opium poppy or cannabis (§ 210-4).
5.5. Pornographic Offences
In terms of criminal policy, the grounds of this crime are in essence disputable, the international aspect of which mainly involves the need to proscribe the international trade in pornography *32 and child pornography. In Estonia, the Act to Regulate Dissemination of Works which Contain Pornography or Promote Violence or Cruelty was passed on 16 December 1997, and this Act also somewhat modified pertinent provisions in the Criminal Code. *33
In Estonia, the main emphasis of criminal regulation is on the protection of minors. The following corpus delicti are namely contained in Chapter 11 of the Special Principles of the Criminal Code: owning, keeping, distributing or otherwise making available the portrayal of a minor in an erotic or pornographic situation (§ 200(1)), as well as distributing, demonstrating or otherwise making such a work available to a minor (§ 200(3)); composing a work portraying a minor in an erotic or pornographic situation (§ 200-3); the demonstration of a work of pornographic content outside a specialised venue (§ 200-4(1)) or the transmission or demonstration of such a work through television or radio (§200-4(2)) as well as a transfer or demonstration of such work to a minor.
5.6. Money Laundering
The need to criminalise money laundering proceeds from the corresponding EU Council Directive of 13 November 1991 (91/308/EEC); money laundering is more specifically defined in the European Convention on the Discovery, Arrest and Confiscation of the Criminal Proceeds of Money Laundering of 8 November 1990.
Estonia has not yet ratified the above-mentioned convention. In accordance with Article 89 of the European Treaty, however, Estonia is required to implement measures for the avoidance of the use of its financial system for the placement of the proceeds of crime and especially the narcotics trade in legal business activity or investments. On 14 November 1996, the three prime ministers of the Baltic States signed a declaration dealing with joint efforts in the combat against money laundering. The countries undertook to devise a law conforming to international standards, protect national economies from illegal money and co-operate with other states to that end.
According to Estonia’s Credit Institutions Act of 1995, a bank is required to identify its clients and take all measures to avoid the use of the banking system for money laundering. As a result of this act, there is a provision (§ 148-8) in Chapter 7 (“Economic Offences”) of the Special Principles of the Criminal Code, which establishes the liability of the head of a credit institution for not complying with the regulations for the prevention of money laundering. The above-mentioned regulations were introduced with 3 May 1996 ruling of the President of the Bank of Estonia. Although this is insufficient for the prevention of money laundering, since money laundering itself is not yet punishable under existing laws. At the present time, parliament is considering a draft Act on the Prevention of Money Laundering and it is likely that together with the adoption of this legislation, the European Convention on the Prevention of Money Laundering will also be ratified. The draft law establishes administrative liability for the violation of the Act on the Prevention of Money Laundering, retains the liability of the head of a credit institution for the above-mentioned offence and criminalises money laundering.
5.7. Fraud
In the given context, this involves the protection of the European Communities’ financial interests against various financial abuses. The obligation to combat fraud was already contained in the Treaty Establishing the European Coal and Steel Community of 18 April 1951. The Convention on the Protection of the Financial Interests of the European Communities passed on 26 July 1995 under Article K.1.5 of the Maastricht Treaty requires Member States to establish punishments for fraud which harms the financial interests of the European Community.
In Estonia’s presently valid Criminal Code, the corpus delicti of fraud is contained in the chapter on crimes against property (Chapter 6 of the Special Principles) and is formulated as obtaining another person’s assets, pecuniary rights or other pecuniary advantage by deception. In addition to this, a corpus delicti relating to computer fraud is contained in the chapter on computer crimes (c.f. the next sub-point of this article for greater detail).
At this point one must, however, take into consideration that the chapter on crimes against property contained in the Special Principles is as a whole out-dated, and not longer complies with existing law of estate. Therefore the legislator has abandoned the amendment or extensive modification of the relevant chapter of the present Code. In addition to the general corpus delicti of fraud, several special corpus delicti concerning subvention and insurance fraud, and which should be in compliance with the requirements of the above-mentioned convention, have been included in the draft Special Principles of the new Penal Code.
5.8. Computer Crimes
European Union recommendation R(89)9 of 13 September 1989 prescribes the standards (minimum list, optional list) for the establishment of corpus delicti in criminal law.
In Estonia the Databases Act was passed on 12 March 1997, and thereunder the new, Chapter 14 of the Special Principles of the Criminal Code on “Crimes Connected with Computers and Data Processing” was supplemented (§§ 268–276). *34 In terms of criminal policy, it is indeed doubtful whether the above-mentioned field constitutes a specific class of legally protected interests, although computer crimes themselves are sufficiently criminalised with the present Act.
The law provides a corpus delicti for computer fraud, delictum sui generis, which was constructed using § 263a of the StGB as a model. In addition, such crimes as the destruction of data or programs on a computer, computer sabotage, the illegal use of a computer, computer system or computer network, the damaging or illegal obstruction of a computer network connection, the wilful spreading of a computer virus and the handing over of security codes have been criminalised.
The draft Special Principles of the new Penal Code retain most of the above-mentioned corpus delicti but does not consider a whole chapter to be necessary. Thus the corpus delicti are located in different chapters, but mostly in the chapter on crimes against property (computer fraud, the illegal use of a computer network, the spreading of a computer virus, etc.)
5.9. Bribery and Corruption
One additional protocol of the Convention on the Protection of the Financial Interests of the European Communities (c.f. item 5.6 above) establishes the application of Member States’ criminal laws on bribery even to EEC officials. Thus, by combating corruption among EEC officials and officials of the Member States of the EEC, the financial interests of the European Communities are also protected. The problem essentially involves the giving of bribes to the officials of foreign or international organisations. It would be feasible to either introduce a special corpus delicti in the Criminal Code or add to the existing corpus delicti on bribery. The question is one of the definition of the legally protected interest – is it as in the case of ordinary bribery – a question of the trustworthiness of the officials of a specific state, or in the given context rather one of the economic interests of the European Union and fair competition? *35
The above-mentioned problem has not directly occurred in Estonian legal practise. In Chapter 8, on white collar crimes – the corpus delicti regarding giving and taking bribes and serving as an intermediate in bribery (§§ 164, 164-1 and 165), as well as that on corruption (§ 164-2) in the Special Principles of the present Criminal Code. These will essentially be maintained in the draft new Penal Code. Estonian legislators have, however, already made a modification to the existing Criminal Code, without waiting for the possible complications that may be encountered in the application of the existing corpus delicti regarding bribery. A specific new corpus delicti (§ 165-1), which establishes criminal liability for giving a bribe to an official of a foreign or international organisation, was namely added to the Criminal Code. *36
5.10. Abuse of Nuclear Material and Radioactive Substances
This offence belongs to the category of dangerous crimes, and is in a certain sense an exception. It has begun to be considered international not because it endangers particular international or European Union interests, but because of the factual dangerousness of this offence – this is “the most dangerous of dangerous crimes”. *37
According to Article 100 of the European Treaty, Estonia has accepted the obligation of co-operating on an international scale to combat this type of crime. A number of corpus delicti have been inserted in the Criminal Code (Chapter 11 of the Special Principles), regarding illegal possession, keeping, use, conveyance and damage of radioactive materials, as well as the acquisition of such materials by criminal means, and threatening to acquire such materials by criminal means (§§ 208-3 – 208-6). Most of these will remain essentially the same in the new penal law.
5.11. Terrorism
The European Convention on the Suppression of Terrorism provides a definition of terrorism based mainly on the negative attributes of the political crime (c.f. item 4.1a of the present article).
The classes of crimes described in Article I of the above-mentioned Convention correspond to the following in Estonian criminal law:
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