Expedience of Arrangement in German and Estonian Criminal Care

• Author: Eerik Kergandberg
• Pages: 76-89

Eerik Kergandberg

Expedience of Arrangement in German and Estonian Criminal Care

I The Principle of Legality as a Prohibition of Arrangement and Non-observance of Expediency: Introductory Remarks on the Basis of German Legal Literature

As is known, for the execution of state power, including criminal policy, the use of two principle types of methods are possible: those of coercion and those of consensus (agreement). Pursuant to the prevailing understanding, methods of coercion are undoubtedly considered primary in criminal care. Moreover, during a long period of time after the separation of powers, it was wished that criminal care would be a field excluding any possibility of agreement or allowing it only in exceptional circumstances. Thus, criminal care was considered the most classic sphere of public coercion. The coercion requirement in criminal care as a whole is foremost expressed in the principle of legality of criminal procedure². According to the prevailing understanding, this principle gives rise to the following requirements:

a) if the characteristics of a crime are present, the prosecutor or the police³ must proceed to investigate the case; and

b) if after the preliminary assessment of the facts, there are sufficient grounds to believe that a crime has been committed, the prosecutor or the police must bring a charge against the offender and the prosecutor must try to get the offender convicted and sentenced by the court.

20. Weigend for whom the traumatic origins of the principle of legality in the context of German criminal procedure lies in the fact that both of the above-mentioned requirements are considered absolutely inseparable, has stated the following: "The saying that every delict must be followed by punishment accords with an archaic, authoritarian system of criminal law, where only the most serious attacks against social order are declared punishable, the most essential argument for punishment is revenge and the mechanism for realising these aims of criminal law is on a sufficiently good level. It is unknown whether these conditions have ever been fulfilled, but in any case, they had not been present at the time the principle of legality was introduced into German national criminal procedure in 1877, not to mention nowadays."⁴

    For the reasons described by T. Weigend, but also evidently under various other circumstances,⁵ different ideas that could be interpreted as introducing exceptions to the principle of legality began to take root in criminal care. In the past twenty years, these exceptions to the principle of legality have been introduced in German criminal care under the device of "acceleration" (Beschleunigung) and a well-intended German desire for systematisation has tried to incorporate them into the principle opposed to the principle of legality, the principle of opportunism.

    The question of how to explain logically the simultaneous effect of two absolutely opposing principles in criminal procedure has not got a unique and explicit answer in German legal literature.

3. Roxin asserts that the effect of the principle of legality "has been blemished by so many exceptions that, in fact, in the sphere of petty crimes but also those of medium severity, the principle of opportunism is functioning."⁶ Thus, C. Roxin confesses that the criminal procedural "playground" is practically divided⁷.

   Almost 20 years ago already, H. Zipf, one of the most famous criminal law politicians, had a somewhat different opinion. He observed that "the opportunism position (with a certain inherent consideration of expediency) would in a certain way restrain immanently only the intensity of the effect of the principle of legality rather than the whole sphere."⁸ According to H. Zipf, the expediency-based grounds for terminating a criminal proceeding (for example, little public interest in a proceeding because of its insignificance) had to be listed, according to the above concept, among the circumstances excluding criminal procedure⁹. H. Zipf explains the necessity to retain the principle of legality throughout criminal procedure by the fact that the principle does not live its own life but executes a specific public regulatory function, that is, a function guaranteeing the fulfillment of criminal law norms and the execution of sanctions. Somewhat incomprehensible is H. Zipf's allegation that the fulfillment of this public function presupposes a carefully metered approach toward the violators of norms and that the right measure for different groups of offences differs. In addition, H. Zipf states that the principle of legality does not require a proceeding for all crimes, but requires the restriction of criminal proceedings by objective public criteria, and foremost, the exclusion of arbitrary action¹⁰.

   Only ten years ago, K. Peters had almost agreed with H. Zipf's view concerning the global nature of the sphere of the principle of legality by affirming that "the principle of opportunism means [on the basis of the principle of legality] not proceeding with crimes that in principle need to be proceeded with"¹¹. Such a defence of the principle of legality can be hardly persuasive and regardless of K. Peters' authority, it has never been the case in Germany. Practical needs have simply ignored such authority.

   The probability of the global nature of the principle of legality in criminal procedure becomes, in fact, questionable when the principle is defined. The principle requires that crimes the characteristics of which have manifested be dealt with. In connection with this, J. Bohnert has stated that, on the basis of the principle of legality, equal treatment (unfortunately in the present case in a "non-human rights" sense by which with the commencement of a criminal proceeding a threat of punishment exists for everybody) of all criminals could only be guaranteed if the percentage of undetected crimes were minimal. Otherwise, if only one out of a hundred crimes is detected, as J. Bohnert continued, only the principle of opportunism can guarantee the equal application of law¹². Indeed, what right is there to "strictly follow the line" in the case of a relatively petty crime while a number of serious crimes are not detected at all? That question can be answered and, naturally, has been answered in various ways, but hardly could any of these answers be correct in principle, and hardly could it be possible logically and correctly to substantiate the global validity of the principle of legality in criminal care.

   It can only be assumed that because of the above-mentioned reasons, the prevailing opinion in present German legal literature (including those of the above-cited T. Weigend and C. Roxin) is that in some fields of the present German criminal procedure the principle of legality has been excluded. At the same time, it seems that while seeking to find a place for the principle of opportunism in the system of principles, most of the authors are somewhat ashamed that the above principle is not an outright ordinary principle of criminal procedure for which a fixed place in the system could be found. Further, it still seems that there is a wish to interpret the principle of opportunism as a certain complex concept incorporating everything deviating from the principle of legality. Such a desire can presumably be explained by the fact that although the direct impetus for the abandonment of the criminal proceeding is declaratively always expediency, the motives and, thus, the deeper reasons for the application of the principle of opportunism can be of the kind which from the aspects of legal policy should not be discussed so openly.

II The Sphere of the Principle of Opportunism in German Criminal Procedure: de lege lata and de lege ferenda

3. Roxin divides the manifestations of the principle of opportunism (cases where a criminal proceeding is terminated despite the suspicion of a crime) in present German criminal procedure into four groups:¹³

1) insignificance of a crime and lack of public interest in proceeding with it;

2) the possibility to satisfy the public interest in proceeding with a criminal case [and for influencing the offender] by other measures;

3) proceeding with a criminal case is in conflict with the national interest; and

4) the victim of the criminal case is entitled by law to initiate the criminal proceeding himself or herself.

In the first group, the so-called absolutely insignificant criminal cases can be distinguished where pursuant to law, the guilt is minor and primarily because of that, there is a lack of public interest in proceeding with the case (section 153 of the Criminal Procedure Code of...