Estonian Code of Criminal Procedure as Legal Political Decision

• Author: Eerik Kergandberg
• Pages: 85-93

Eerik Kergandberg

Estonian Code of Criminal Procedure as Legal Political Decision

Introduction

All larger Estonian political parties agreed that Estonia needs a new Code of Criminal Procedure (hereinafter: CCP). A commission consisting of Estonian lawyers and three foreign experts was formed by the Ministry of Justice, which had to formulate all the most important options related to the new CCP for the politicians and explain the consequences arising from the selection of different variants. The commission completed its work in three months and forwarded the catalogue of options to the politicians, who then made their choices and started preparing the code... Unfortunately, it has to be said that no such systematic and planned work as described above has actually occurred in Estonia. ¹ Subsequently, the draft of the Estonian CCP may undoubtedly be called a certain option (or sum of options) if one so wishes, but as a participant in the working group ² that prepared the draft, I have to admit that since there was no legal political order for development of a catalogue of options, there was no substantial theoretical discussion of the main conceptual issues of the draft. This does not mean that the persons who prepared the draft did not rely on the standpoints of special literature, or did not try to follow the contemporary tendencies in the law of criminal procedure and solutions from the practice other states have in the creation of laws. Despite this, many choices in the work group were made as a result of voting and sometimes they were rather intuitive than anything else. Therefore, it may be said that to a large extent, the drafts of the CCP have been designed by the great magician, chance. ³ In my opinion, one of the reasons why accidental factors have actualised that could be mentioned above all is knowledge of foreign languages (for example, the opinion of a person who speaks only Swedish is that no issue can be solved better anywhere else than in Sweden): the opinion that some regulation seems to be "too Soviet" and therefore a completely different solution should be used; the standpoint that "I have treated this issue so thoroughly in my scientific articles that my de lege ferenda proposal simply must become law"; the understanding of practising lawyers that "how come things are suddenly like this when they have always been otherwise" ⁴ , etc. At the same time one may assume that the described situation in the preparation of the draft of the Code of Criminal Procedure is not exceptional in the creation of laws in Estonia (maybe even in all of the so-called former Eastern bloc countries). For example, in his treatment of the problems related to the effect of legal acts, A. Kasemets has pointed out that in the creation of laws after Estonia regained her independence, the possible social, psychological, economic, foreign and security political, institutional-economical, cultural, etc. effects and consequences of new laws have usually not been analysed. ⁵ In the described situation, it may even be good when the finished draft is left pending for a somewhat longer time.

The first work group who prepared the draft of the CCP handed the draft over in 1993. Even though it was not passed as a law, many of the draft's institutes or norms have actually been passed as amendments to the valid Criminal Procedures Act, which could also be treated as legal experiments preceding the introduction of the innovations to the draft. When we consider the aforementioned amendments to the valid Law of Criminal Procedure (hereinafter: LCP), we could mention acknowledgement of the solutions of the Riigikogu (Estonian parliament) as sources of justice in criminal procedures in such issues, which have not been resolved in other sources of criminal procedure or which have arisen at the application of law (§ 1 (4) of the LCP) ⁶ ; simple procedure (Chapter 33 of LCP) ⁷ ; principally new regulation for initiation of criminal procedure (Chapter 8 of LCP). But all this is just introductory talk, as can be seen from the subheading. The actual objective of this article is to try to describe some of the most important situations of choice, which in the opinion of the author could arise in the compilation of contemporary law of criminal procedure, also whether they actually arose in the compilation of the draft of the CCP and what was done in these situations of choice.

Competing and Noncompeting Criminal Procedure

There is no other branch of law where the conflict between the two main contemporary legal systems - continental European and Anglo-American - is as acute as in the law of criminal procedure. It is true that in contemporary systems of lawmaking, this conflict tends to be solved mainly in one direction - by introducing different elements from the competing criminal procedure in the continental criminal procedure. ⁸ The issue of the "competing/noncompeting" model arose also in the preparation of the Estonian Code of Criminal Procedure, but it did not happen in its classical form, because no one in Estonia has wanted to introduce American criminal procedure, at least not loudly enough. It has obviously also been caused by the fact that historically there have been no arbitration courts in the territory of Estonia. Without these, purely American criminal procedure would be unthinkable. The authors of the draft were rather interested in states that had introduced elements of competition in their traditional criminal procedure. Above all, we looked towards Italy. Evidently there were some people responsible for creation of laws, who wanted to establish the Law of Criminal Procedure of that state in full. ⁹ Finally, the opinion that prevailed in the work group was that the new law of criminal procedure of Italy will only be used as a background system in order to achieve more exact determination of the functional roles of the court and the parties of a criminal procedure in the future criminal procedure of Estonia. This means that whether the accused is convicted or not should first and foremost depend on the success of the work of the prosecution or the defence. But at the same time it also means that at least the first-degree judge should decide on the basis of what happens in the courtroom rather than the criminal file prepared during preliminary investigation. According to the draft (after the example of Italy), the so-called system of two files will be introduced into Estonian criminal procedure. This means that when investigation of a criminal case by simple procedure (which has three subtypes) is excluded after pre-trial investigation, the criminal file created as a result of the pre-trial investigation will be divided in two. The material that is neutral in its essence (crime notice or other documents on the basis of which the criminal case was initiated; extract from the conviction register; prosecution deed; list of persons who the prosecution and defence want to summon to court) will be collected into the so-called court file that will be sent to court and which will allow the judge to manage the session, but the examination of which provides no grounds for the judge to develop any preliminary decision. The other materials collected as a result of pre-trial procedure (above all, evidence collected during pre-trial investigation) will remain in the other, the so-called prosecutor's file. The draft understandably also regulates in which exceptional cases it will be permitted to disclose materials from the prosecutor's file at court investigation. Discussions in court will generally run in a rather competing manner and classical principles of cross-examination will be used. When compared to the original variant of the draft, the final variant is much more radical about guaranteeing the neutrality of the judge. According to the original variant (based on the Scandinavian model), it was not considered necessary to "cut" the criminal file. It was sought to achieve the neutrality of courts by the way that the first degree judge was to proceed in the procedure from the prosecution deed prepared by the prosecutor and ... the defence summary prepared by the defence lawyer. The prosecutor was supposed to bring the criminal file to the court only when arriving for the session. At the same time the authors of the original variant thought that the second-degree court could have the criminal file on the table while discussing the case...

Corpus Juris and Estonian Code of Criminal Procedure

Development of the draft of the Estonian Code of Criminal Procedure occurred at the time when Corpus Juris (hereinafter: CJ) ¹⁰ , probably the most ambitious model of supra-criminal procedure of all times, was completed. As we know, CJ is a draft developed by the working group formed at the initiative of the Council of Europe and led by acknowledged French professor Mireille Delmas-Marty, which was completed in 1997, and the explanations thereto. The draft includes criminal law protecting the economic space of the EU as well as the provisions corresponding to its law of procedure, and it has often been declared the first step in the creation of a common European criminal welfare system (i.e. a system that unites criminal law and criminal procedure). However, not all opinions of the future of the CJ and the possibility of European criminal welfare are too optimistic. Obviously there are only a few such theoreticians at the present time who would deny the necessity...