Admission and Confession of Guilt in Settlement Proceedings under Estonian Criminal Procedure

Author:Meris Sillaots
Position:Magister iuris, Lecturer of Criminal Procedure, University of Tartu
Pages:116-124
SUMMARY

1. Application conditions and course of settlement proceedings under the new CCP - 2. Settlement proceedings as a further step in providing simplified proceedings in Estonian criminal procedure - 3. Admission and confession of guilt in Estonian settlement proceedings under the CCP - 4. Regarding a confession of guilt as testimony in settlement proceedings - 5. Use of a confession made in... (see full summary)

 
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Meris Sillaots

Magister iuris, Lecturer of Criminal Procedure, University of Tartu

Admission and Confession of Guilt in Settlement Proceedings under Estonian Criminal Procedure

The new Code of Criminal Procedure1 (CCP), which provides for settlement proceedings2 as an alternative form of simplified proceedings3 to judicial proceedings in accordance with the general procedure, entered into force in Estonia on 1 July 2004.

This article discusses some of the issues relating to settlement proceedings. The focus is on issues of admission and confession of guilt in settlement proceedings.

1. Application conditions and course of settlement proceedings under the new CCP

According to the provisions of CCP § 239 (1), a court may adjudicate a criminal matter by way of settlement proceedings at the request of the accused or the Prosecutor's Office. CCP § 239 (2) 1) provides that settlement proceedings shall not be applied in the case of criminal offences in the first degree, for which the Penal Code prescribes at least four years' imprisonment or life imprisonment as the minimum and maximum punishment, respectively.

Settlement proceedings may be initiated by the Prosecutor's Office (CCP § 223 (4), § 240) or by the suspect or the accused (CCP § 242 (1)). Before the judicial proceedings commence as part of settlement proceedings, the Prosecutor's Office explains to the suspect or the accused his or her rights in the settlement proceedings and the consequences of opting for settlement proceedings (CCP § 240 1)), and if the suspect or the accused and his or her counsel consent to the settlement proceedings, the Prosecutor's Office prepares an appropriate report on this consent (CCP § 240 4), § 241). The Prosecutor's Office also explains to the victim or the civil defendant the rights of the victim or civil defendant in settlement proceedings and the consequences of the application of settlement proceedings (CCP § 240 2), § 241), and if the victim or civil defendant consents, the Prosecutor's Office draws up a report on the consent (CCP § 240 3), § 243).

After drawing up consent reports, the Prosecutor's Office commences negotiations with the suspect or the accused and his or her counsel in order to conclude a settlement (CCP § 244 (1)). The objects of the settlement negotiations are the legal assessment of the criminal offence, the nature and extent of the damage caused by the criminal offence, and the type and the category or term of the punishment (CCP § 244 (2)). As a result of the negotiations, a settlement complying with the requirements of the law is reached (CCP § 245). Judicial proceedings are then conducted in connection with the settlement proceedings. The prosecutor, the accused, and his or her counsel are summoned for a court session (CCP § 246). The main substance of the hearing is the ascertainment of whether the accused understands what the settlement entails and whether arriving at the settlement was the actual intention of the accused (CCP § 247 (2)). In the judgement of conviction, the court proceeds exactly from the settlement (CCP § 249). If the court does not agree to the settlement, the court returns the file with the ruling to the Prosecutor's Office (CCP § 248 (1) 1) and 2)).

2. Settlement proceedings as a further step in providing simplified proceedings in Estonian criminal procedure

The settlement proceedings provided for in the new CCP are one step further, in the footsteps of the simplified proceedings4 set out in the 1961 Code of Criminal Procedure (1961 CCP). Compared to the simplified proceedings provided for in the 1961 CCP, settlement proceedings under the CCP are probably conducted somewhat more quickly. Settlement proceedings under the new CCP no longer require prosecution; the prosecutor need not prepare a separate statement of charges, as the relevant information is contained in the settlement. One of the major essential changes is that in contrast to simplified proceedings, application of the new settlement proceedings does not require a confession of guilt by the accused. It should be stated by way of comparison that according to the provisions of § 364 (1) of the 1961 CCP, the evidence - i.e., the testimony of the accused - was a prerequisite for the use of simplified proceedings. Another condition was that the testimony had to contain a confession by the accused to all the charges brought against him or her. Thus, in simplified proceedings, the confession has not only the usual meaning of evidence but also a procedural meaning, implying that simplified proceedings cannot be applied unless there is a confession. The 1961 CCP does not actually preclude the lack of confession preceding the negotiations of simplified proceedings; rather, confession is a result of (informal) negotiations to meet the prerequisite for applying simplified proceedings and commencing formal negotiations.

The fact that confession of guilt is not a precondition for applying settlement procedures under the new CCP implies a positive development toward broadening the possibilities for application of settlement proceedings. However, it should be critically noted that the regulations pertaining to settlement proceedings do not govern the issues surrounding confession of guilt. It is probably incorrect to presume, though, that confession has no particular meaning in settlement proceedings at all anymore.

3. Admission and confession of guilt in Estonian settlement proceedings under the CCP

As it has been argued in the professional literature that the settlement proceedings provided for in the Estonian CCP are a Continental modification of the plea bargaining established in the Anglo-American legal system5, it should be noted by way of comparison that admission of guilt has no such meaning in Estonian settlement proceedings under the criminal procedure as the guilty plea does in, e.g., US settlement proceedings6. It should be stressed that the guilty plea is not part of the Estonian criminal procedure.

A comparison of the provisions of the 1961 CCP concerning simplified proceedings and the new CCP addressing settlement proceedings shows that while at the court hearing involved in simplified proceedings under the 1961 CCP a judge has to ask whether the accused confesses to the charges (§ 383 (2) of the 1961 CCP), the judge does not have to ask such a question of the accused in the court hearing for settlement proceedings under the CCP. According to the provisions of the CCP, it is possible to apply settlement proceedings and also make a judgement of conviction without the accused making a confession to the charges in the form of testimony and without the accused admitting his or her guilt in a manner similar to the guilty plea. According to CCP § 244 (2) and § 245 (1), it is sufficient in settlement proceedings if the Prosecutor's Office and the suspect or the accused and his or her counsel reach an agreement on the legal assessment
of the criminal offence, the nature and extent of the damage caused by the criminal offence, and the type and the category or term of the punishment. For making a judgement of conviction in settlement proceedings,
it is also important that the court ascertain that the settlement was the actual intention of the accused (CCP § 247 (2)) and that the court has no doubts about the issues settled by the court judgement (CCP § 248
(1) 2)).

The procedural document that contains the agreement on the legal assessment of the criminal offence and other issues subject to the settlement is the settlement under the criminal procedure (CCP § 245). According to CCP § 245 (1) 5), the settlement sets out the facts relating to the criminal offence, amongst other things. It may thus be said that if the accused signs the settlement, the accused essentially states that he or she does not contest the charges contained in the settlement (more specifically, the facts relating to the criminal offence, the nature and extent of the damage caused by the offence, and the legal assessment of the offence). The settlement thus contains a substantive admission of guilt. However, non-contestation of the charges (admission of guilt) in itself should not be regarded as substantive confession of guilt. To be more exact, such admission of guilt should not be regarded as evidence in the form of a piece of testimony. Admission of guilt by the accused, in the form of statements in the settlement, is not evidence concerning the facts relating to the offence but rather part of the dispensational procedural act of conduct. The other part of this dispensational procedural act is the consent of the other party, the prosecutor, to the content of the settlement. In other words, the admission of guilt by the accused as expressed in the settlement constitutes procedural conduct as a means of influencing the course of the proceedings. By signing the settlement, the accused and his or her counsel and the prosecutor mainly state that they request the continuance of the criminal proceedings by way of settlement proceedings under the conditions set out in the settlement.

As confession of guilt in the form of testimony is not required as a precondition for the application of settlement proceedings or a particular resolution of...

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