Saatja: Mari-Liis Lipstok </O=RIIGIKOHUS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=MARI-LIIS LIPSTOK48F>
Saaja:
[email protected],
[email protected], Kristina Domaðkina, Priit Pikamäe, Piret Lehemets
Teema: Question criminal law - Estonia
Dear Ms Cristea
On behalf of the Estonian Chief Justice Mr Pikamäe, in response to your
query on the application of a more lenient penal code, please note the
following:
Under subsection 5(1) of the Penal Code of the Republic of Estonia, the
punishment is imposed pursuant to the law in force at the time of the
commission of the act. This means that the Act in force at the time of
the commission of the act is generally applied. An exception to this
rule is made by subsection 5(2) of the Penal Code which provides that an
Act which precludes the punishability of an act, mitigates a punishment
or otherwise alleviates the situation of a person has a retroactive
effect. This means that if the Act is amended after the commission of
the act but before the court renders a judgement, the more lenient Act
is applied. This is also the case when a third, the most lenient Act,
has been in force in between the time of the commission of the act and
the time of rendering the court judgement.
In order to decide whether the new Act is more lenient or not, a study
is conducted on case-a by-case basis. This means that the different
versions of the Act are not compared in an abstract way but that an
analysis is conducted to determine which of these is more lenient toward
the accused in the specific case. The Act which ensures the most
favourable situation for the accused will be applied. It is possible to
find an individual guilty and to punish them only if the act committed
by them has been continuously punishable at every moment in time from
the commission of the act until the entry into force of a court
judgement (although it might have constituted a different offence). If
the Penal Code has been amended after the commission of the act and the
punishment has been mitigated, the act is qualified under the Act in
force during its commission; however, the punishment is imposed under
the Act providing a more lenient punishment.
A conclusion has also been reached in the Estonian court practice that
the charges do not have to set out the qualification of the act under
the Penal Code which entered into force after its commission; however,
in order to ensure the right of defence, the accused must still have the
possibility to dispute whether the act described in the charges was
punishable as an offence at the time of its commission, as well as
whether the act has been continuously punishable from its commission
until the rendering of the court judgement.
Kind regards
Mari-Liis Lipstok
Legal Adviser to the Chief Justice
Supreme Court of Estonia
tel + 372 730 9022
mob +372 529 4599
From: Simona Cristea [mailto:
[email protected]]
Sent: Tuesday, June 03, 2014 4:48 PM
To: Secretariat Network of the Presidents; President (Hoge Raad); Dr.
Geert J. M. Corstens; Schreuders-Valette, D (Hoge Raad);
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Subject: question criminal law
Distinguished Presidents,
Please find attached a letter from Ms President Livia Doina Stanciu.
Sincerely,
mag. dr. Simona Cristea.