Jaan Sootak, Sten Lind, Raul Otsa
Penalty and Other Punitive Sanctions in the Estonian and European Legal Order
The notion of sanctions requires, above all, solving of the problem of whether the sanctions of each particular branch of law remain within the limits of the specifics of that branch of law or involve a more punitive matter or repressive element - that is why they have to be analysed essentially as penal law sanctions. The domestic angle is particularly important from the point of view of Estonia's young legal order, which is still in the development stage. The other, the international dimension, results primarily from the fact that sanction rules are contained both in European Union law and in other international acts, first and foremost in the Council of Europe conventions. All these provisions together must be co-ordinated with the national legal order to build an integrated system. However, we must say that European Union law is characterised by inconsistent terminology. The sanctions contained in European Union law are so varied that their analysis would presume scrutiny of individual issues, which surely goes beyond the scope of this article. We can only note that the notion of sanctions cannot be found in the text of the Treaty establishing a Constitution for Europe1; the treaty mentions only that of a penalty. However, comparison of the English, French, German, and Finnish texts gives a somewhat more varied picture. All these treaty versions speak about penalty (penalty, peine, Strafe, rankastus) in Article II-109, where it is definitely adequate (offences and penalties). In Article III-271, however, the English, French, and Finnish versions speak about sanction (sanction, seuraamus), whereas the German one mentions the penalty concept (Strafe). It is the other way round in Article III-363: the English version refers to penalty, while the French and German versions mention sanction.
This article sets out to (1) analyse the notion of sanctions in penal law against the background of both national and European Union, as well as Council of Europe, law; (2) then examine the problems related to public law sanctions as exemplified by suspension of the right to drive; and 3), finally, consider the prohibition of business in civil law as a punitive sanction.
The nature of penal law is eventually revealed in the penalty imposed for a wrongful act. Here we may ask whether each legal consequence in punitive law is a sanction or sanctions only include penal or punitive sanctions that give a negative assessment to an act. In fact, there are more questions to ask, such as that of the extent to which we can talk about sanctions in the case of a legal consequence that involves not imposition of a penalty but instead its rescission.
It is obvious that sanctions comprise penalties. The European Court of Human Rights points out the characteristics of a penalty that distinguish this sanction from the punitive sanctions contained in other branches of law. Firstly, a penalty must be contained in criminal or misdemeanour law (this criterion not being of any significance here); secondly, the nature of the delict is important, whether it is part of general penal law and aimed against general legal rights but is not a disciplinary offence; and, thirdly, the content of the sanction, the damage contained therein, and the resulting important preventive impact on the public are key2.
A penalty may be applied both actually and conditionally. The applicable Estonian penal law uses the French and Belgian sursis in the institution of conviction, in the case of which a person is convicted and is given a penalty that is not enforced but is conditional. According to the system of law, the conditional sentence is not regarded as an independent sentence type but as release from punishment (Chapter 5: 'Release from punishment'); however, it follows the punishable act and is a legal consequence determined by the degree of guilt, and thus it must be considered a sanction. During the period of probation, the convicted offender may be subjected to certain supervisory requirements or obligations; for example, he must reside at a permanent place of residence determined by the court, remedy the damage caused by the criminal offence, undergo the prescribed treatment, not meet certain persons, and so on (§ 75). Such requirements and obligations are not sanctions per se but form the substance of a conditional sentence as a sanction.
A person may be released from the conditional sentence not only during the imposition of the sentence but also during its service - that is, on parole (§§ 76 and 77). Here we can also say that the convicted offender continues to bear liability, though conditionally; thus, he is subject to sanction. Release from punishment due to terminal illness (§ 79 (1)), on the other hand, means unconditional release: the person no longer serves the sentence and is no longer sanctioned. Poena naturalis (§ 80) is a different issue. Namely, the court may release the convicted offender from the punishment if he is seriously injured as a result of committing the criminal offence. Though called a natural punishment, this does not, however, constitute a penalty in the legal sense and consequently does not serve as a sanction.
In addition to the principal and supplementary punishment, the sanction system underlying the Penal Code also recognises substitute punishments. For example, community service may be substituted for imprisonment (§ 69), while unpaid pecuniary punishment, a fine, or a fine to the extent of assets may be replaced by imprisonment, detention, or community service, respectively (Chapter 4, Division 3). Substitute punishment is definitely a sanction.
Chapter 7 of the Penal Code, 'Other sanctions', comprises three types of legal consequences - confiscation (§§ 83-85), coercive psychiatric treatment (§ 86), and sanctions applied to minors (§ 87).
The classification of the latter as sanctions does not cause any problems, as, in the legal sense, a minor is released from punishment due to his diminished capacity for guilt; nevertheless, the sanctions imposed instead have features characteristic of penalties - these are measures designed to express social and ethical condemnation imposed for a wrongful act (see also section 4.2 below).
The two following measures described in Chapter 7 of the Penal Code can also be imposed for acts that are not wrongful. It is true that the object used to commit an offence may be confiscated from a person who has been convicted and punished (§ 83 (1) and (2)). However, this is not a punitive sanction by nature, since its application does not depend on the degree of the person's guilt or the gravity of the offence. Such a measure is called a securing non-punitive sanction3. Application of confiscation against a person who has aided in the use of the object for the commission or preparation of the offence or has acquired it in order to avoid confiscation (§ 82 (3)) resembles a penalty even less. In the absence of the permission necessary for the possession of a substance or object, confiscation is applied always, even if the person (for example, a child or a person of unsound mind) has not committed the offence wrongfully (§ 83 (5)).Recent professional literature in the field of law has pointed out that the regulation of confiscation contains much of that which might make it punitive. If assets acquired through an offence have been transferred or the confiscation thereof is impossible for another reason, the court may order the offender to pay an amount corresponding to the value of the assets subject to confiscation (§ 84). On the basis of § 73d (covering 'extended confiscation') German Strafgesezbuch, assets may be confiscated from a person committing an unlawful act if there are grounds to believe that the assets were derived from an offence or used therefor. The net principle used to be applied to calculate the value of the assets to be confiscated, so that the amount of the assets to be confiscated was obtained via consideration of the balance of profit and loss, but the gross principle has been adopted more recently. According to that principle, everything obtained through an offence is confiscated, regardless of the expenditure involved. Such trends have given rise to complaints that, in essence, confiscation is a form of sanctions that should be applied in accordance with the principle of guilt4. The objection proceeds from a purely legal argument - confiscation is not a punishment, and thus it is not necessary to take account of the principle of guilt5. Here we also have to bear in mind the fact that while in Germany the underlying fine to the extent of assets related to confiscation in § 43a has been revoked as unconstitutional6, its analogue found in the Estonian Penal Code (§ 53) continues to apply.
It is a matter of substantive decision whether to regard confiscation as sanction or not. This may be done with regard to a convicted offender, while in the case of third parties such a conclusion is...