The Historical Experience of Estonia with the Plurality of Penal Law Acts

Author:Marin Sedman
Position:Doctoral Student of Legal History University of Tartu

1. The sources of criminal law until 1935 - 1.1. The conceptual choice of the Republic of Estonia in 1918 - 1.2. The Old Penal Code (1845) - 1.3. The New Penal Code (1903) - 1.4. The Penal Code for Peace Courts (1864) - 2. Principles and problems of application of the criminal codes - 2.1. Application of the codes in principle - 2.2. Some practical examples - 2.3. The light at the end of the... (see full summary)


The state intervenes most intensively in a person's life through criminal law. For that reason, criminal law has to be implicit, in order to enable sufficient legal protection. This means that the state has an obligation toward its citizens to provide legal certainty through criminal law and enable people to receive adequate protection against the intervention of the state. One of the primary requirements in order for law to be implicit is for one to have knowledge as to which law is the one under which he or she is being punished. One possibility for ensuring that law is implicit by means of a legal technical remedy is codification through which the regulation of criminal law is exhaustive.

At present, in Estonia there essentially exists plurality of criminal law-coverage of crimes is incorporated into the Penal Code 1 , but misdemeanours are mostly scattered among a variety of special laws2. Whether or not this is purposeful is obviously questionable, but it cannot compare with a situation in which, for a given offence, there is more than one criminal law that can be applied. So far, there has been little harmonisation of substantive criminal law in the European Union-one example of such an attempt being Council Framework Decision 2003/568/JHA of 22 July 2003, on combating corruption in the private sector 3 -but with the entry into force of the Treaty of Lisbon 4 the so-called system of pillars has been abolished and successive acts will be directly applicable. If any further acts will be directly applicable, a situation arises wherein we have our national criminal law and the criminal law of the European Union, two parallel systems of penal legislation existing simultaneously. What the direct applicability of criminal-law acts will look like is not yet clear5. Insofar as we already have historical experience of the simultaneous validity of parallel criminal-law sources, it is possible and necessary to show the problems that could await us.

In the first period of the Republic of Estonia, between the two World Wars (from 1918), there were three parallel codes in existence. In 1935, the Estonian Criminal Code 6 entered into force. With the entry into force of the new criminal code, the situation in criminal law changed dramatically-the general part of criminal law was governed by one legal act and was applicable to the whole of the special part of criminal law: to the offences dealt with in the Criminal Code itself and to the minor offences addressed in special legal acts. It should be noted that criminal law became clearer-there were uniform general norms for all crimes and misdemeanours. The situation that came into being in 1935 is comparable to the current situation in criminal law-the general part of the Penal Code is applicable to all offences that are found addressed therein and in special criminal law. The reform of criminal law that resulted in the enactment of the Criminal Code played a major role in clarification of criminal law. It led to the termination of the applicability of parallel penal codes.

This article will focus on characterising the criminal legislation that was in force until 1935. After this, the principles of the application of each criminal law and problems in application will be dealt with.

1. The sources of criminal law until 1935
1.1. The conceptual choice of the Republic of Estonia in 1918

From the 18th century until the First World War, the three Baltic States of today were parts of Czarist Russia. After the 1917 February Revolution, rapid consolidation by nations for statehood followed. In Estonia, the republic was announced on 24 February 1918, but on the next day German troops reached the capital, Tallinn. After the end of the German occupation, in November 1918, it was decided to restore the criminal law of Czarist Russia7. Mainly because the formation of a new criminal law code in an extremely short span of time was not possible, the provisional government decided to restore the old legislation. Doing otherwise would have also raised the question of what law to apply in the meantime when a new law had not yet been drafted or entered into force. During the German occupation, the new Penal Code (hereinafter 'the New Penal Code') was carried into effect. The New Penal Code, which had been completed in 1903, was held to be a modern and progressive codification, but it had only been enacted in part in Czarist Russia. There were many reasons the Estonian provisional government did not want to enact the New Penal Code in its totality as it had been during the German occupation. K. Saarmann found that most of our lawyers were not familiar with the New Penal Code, there was no law on enforcement of penalties, and the New Penal Code was not in compliance with procedural laws8. Another element that argued against the New Penal Code was the lack of case law, which was, by contrast, represented in a great mass for what we refer to here as the Old Penal Code9. G. Ambach also found that many Estonian lawyers had graduated from Russian universities (in St. Petersburg or Moscow) and were thus acquainted with the Old Penal Code10.

The newly formed republic dealt not only with different branches of law but also with the founding of the general basis for constitutional law. The Republic of Estonia declared itself already in the Constitution from 1920 as subject to the rule of law. The preamble to the Constitution of 1920 states: "The people of Estonia, in unwavering faith and in steadfast will to establish a country that is founded on justice and law and liberty, to protect the internal and external peace, and pledge to present and future generations for their social progress and an overall welfare, the Constituent Assembly adopted and appointed the following Constitution." The part of the preamble that states that the country shall be founded on justice, law, and liberty sets forth the important principle of the rule of law. Near the end of 1920, Professor Eduard Berendts already had written about the Supreme Court of Estonia and the principles of the Constitution of 1920 with the words 'Justitia est fundamentum regnorum' (that is, justice is the foundation of a state)11. This is the rule of law. This idea is also the basis for the Constitution of 1920 of the Republic of Estonia and must rule over both the legislative and the executive powers in government and their actions in court. The rule of law is related to the limitation of power through general provisions in force, through which the state power is responsible to the people for its activities12. According to § 9 of the Constitution of 1920, it was not allowed to punish a person in Estonia for an act that was not punishable by law and laws against which were not in force during the commission of the act. Thus, the Constitution included the warranty of nullum crimen, which states the obligation of specification-namely, that offences are to be sufficiently well defined. Because the state intervenes in a person's life intensively through criminal law, according to the rule of law and the principle of nullum crimen, criminal law must be implicit; there must be stipulations that designate the conditions for state intervention. So, we already have principles derived from the Constitution that support response to the fundamental need that criminal law be explicit.

It seems to be that, in direct conflict with the constitutionally required state of law, implicit and ascertainable criminal law was the situation that was caused with the introduction of Czarist criminal law. In Czarist times and before the German occupation, there were three parallel codes of criminal law applicable-the old Russian Penal Code of 1845, the Russian New Penal Code of 1903, and the Russian Penal Code for Peace Courts from 1864. Since the government of the Republic of Estonia decided to put into force the legislation pre-dating the German occupation, the three above-mentioned sources of criminal law entered into force. The Old Penal Code and the Penal Code for Peace Courts were in force completely, but only some parts of the New Penal Code were put into force. It can be suggested that, in situations where there is plurality of, and an overlap between, sources of criminal law, the options a person has to orient in and understand criminal law are restricted. In this kind of situation, is it possible to talk about the application of the rule of law? In addition, each of the above-mentioned legal codes had shortcomings and ambiguities in connection with the principle of the rule of law.

1.2. The Old Penal Code (1845)

The Old Russian Penal Code or 'Code of Criminal Penalties and Corrections', entered into force on 1 May 184613. With the entry into force of this penal code, the situation of Russian criminal law changed quite dramatically-it was the first source of systemised criminal law in Czarist Russia. J. Sootak has found that it ended legal particularism and harmonised court practice14. Contemporary German writer and famous Baltic jurist A. Paucker esteemed the code very highly-for him, the code was a new creation of the 19th century, one that was free from earlier, outdated concepts of criminal law 15 and was the source of criminal law for nearly the whole territory of Czarist Russia 16 ; he held also that the penal system was based on general and special prevention 17 and the corrective nature of punishments 18 19. Given the fragmentation of criminal law, the Penal Code...

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