Corpus Juris and Estonian Criminal Procedure

• Author: Jaan Ginter
• Pages: 64-67

Jaan Ginter

Corpus Juris and Estonian Criminal Procedure

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 sentences².

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; orgood reasons to believe it necessary to stop the accused from committing such an offence; orgood reasons to believe that the accused will flee³.

§ 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; orfor prevention of commission of crime⁴.

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...