Estonian Criminal Law as a Component of International Criminal Law
| Author | Jaan Sootak |
| Pages | 53-63 |
Jaan Sootak
Estonian Criminal Law as a Component of International Criminal Law
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 law1. 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.
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 applied2. 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 globe3.
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, 19975. 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 law7.
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...
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