Saatja: Karin Leichter-Tammisto </O=RIIGIKOHUS/OU=EXCHANGE ADMINISTRATIVE GROUP (FYDIBOHF23SPDLT)/CN=RECIPIENTS/CN=KARIN LEICHTER90D>
Saaja: Kadri Nõmm
Teema: FW: RE: Request for Information from the Constitutional Tribunal of Poland
From: Karin Leichter-Tammisto
Sent: Monday, October 7, 2019 8:27 AM
To: 'Michał Piechota' <
[email protected]>
Subject: RE: RE: Request for Information from the Constitutional Tribunal of Poland
Dear Mr Michał Piechota,
Please find the answer to your query on Estonian legislation and case law regarding the possibility of expunging (erasing) a criminal record.
1. Question
Yes, our legal system provides the legal institution of expunging (erasing) the criminal record of conviction. Estonia has Criminal Records Database Act (hereinafter the CRDA), which is also available online in English (https://www.riigiteataja.ee/en/eli/501042019021/consolide).
The CRDA § 5 subsection 1 reads as follows: The information concerning punishments of persons entered in the database has legal effect for ascertaining the punishment record of the person and recurrence of criminal offences or misdemeanours committed by the person until deletion of the information.
According to the CRDA § 5 subsection 2 information deleted from the database and entered in the archives has legal effect only in specific occasions. Those are mostly related to proceedings regarding our national security. The information that is in the archives is taken into account when conducting a certain background check, mostly when a person is applying for a position in police service, service involving minors, in the rescue service, in prosecutors' service, in prison service, in the service of an administrative agency, service in the Defence Forces etc. Also, for an example, when a person is applying for a weapons permit.
The deletion of information concerning punishment from database is dependent on the imposed and served punishment and does not derive directly from the offence committed. The CRDA § 24 subsections 1 and 2 read as follows:
(1) Information concerning punishment shall be deleted from the database and transferred to the archives if:
1) one year has passed since the payment of a fine, service of detention, fulfilment of community service imposed for a misdemeanour or deprivation of driving privileges imposed as a principal punishment;
2) two years have passed since the payment of a fine or service of detention imposed for a misdemeanour provided for in the Taxation Act or another Act concerning a tax;
3) two years have passed since the termination of coercive psychiatric treatment;
4) two years have passed since the termination of administration of addiction treatment;
5) three years have passed since the enforcement of a pecuniary punishment judgment imposed for a criminal offence;
6) three years have passed since the end of the probationary period determined upon release on parole or conditional release from a pecuniary punishment;
7) three years have passed since the performance of community service;
8) five years have passed since an imprisonment of less than five years was served;
9) ten years have passed since an imprisonment of five to twenty years was served;
10) fifteen years have passed since an imprisonment of more than twenty years was served;
11) the limitation period for the execution of a judgment has expired pursuant to § 82 of the Penal Code;
12) the person has died;
13) the legal person is dissolved.
(2) If the offence was committed while the person was a minor, information concerning his or her punishment shall be deleted and transferred to the archives if:
1) one year has passed since the payment of a fine, service of detention, fulfilment of community service imposed for a misdemeanour or deprivation of driving privileges imposed as a principal punishment;
2) one year has passed since the termination of coercive psychiatric treatment;
3) one year has passed since the termination of administration of addiction treatment;
4) two years have passed since the enforcement of a pecuniary punishment or a judgment for compulsory dissolution imposed for a criminal offence;
5) two years have passed since the end of the probationary period determined upon release on parole or conditional release from a pecuniary punishment;
6) two years have passed since the performance of community service;
7) three years have passed since an imprisonment of more than twenty years was served;
8) five years have passed since an imprisonment of five to ten years was served;
9) the limitation period for the execution of a judgment has expired pursuant to § 82 of the Penal Code;
10) the person has died.
The CRDA § 24 subsection 6 sentence two also states, that the information concerning punishments imposed for misdemeanours shall be preserved in the archives for ten years, the information concerning punishments imposed for criminal offences shall be preserved in the archives for 50 years as of the date of transfer to the achieves.
2. Question
There is also one exception, when information concerning punishment is not deleted from the database. The CRDA § 25 subsection 2 says, that if a person is sentenced to life imprisonment, information concerning the punishment of the person shall not be deleted except in the case the person is released from life imprisonment or the person has died. In the case a person is released from life imprisonment, the term for the deletion of the information concerning the punishment shall be calculated on the basis of the punishment actually served. If a person has been released on parole, the term for deletion of the information concerning the punishment commences to run as of the termination of parole.
Regarding offences against sexual self-determination there are only two offences when Estonian Penal Code states that life imprisonment can be imposed:
§ 141. Rape
(1) Sexual intercourse with a person against his or her will by using force or taking advantage of a situation in which the person is not capable of initiating resistance or comprehending the situation
is punishable by one to six years’ imprisonment.
(2) The same act:
1) if committed against a person of less than eighteen years of age;
2) if committed by a group;
3) if serious damage is thereby caused to the health of the victim;
4) it causes the death of the victim;
5) it leads the victim to suicide or a suicide attempt; or
6) if committed by a person who has previously committed a criminal offence provided in this Division; or
7) if committed by the offender by taking advantage of the situation caused to the victim by means of narcotic or psychotropic substances in which the person is not capable of initiating resistance or comprehending the situation is punishable by six to fifteen years’ imprisonment.
[RT I, 25.09.2015, 6 - entry into force 23.09.2015 – To declare the sanction of subsection 141 (2) of the Penal Code to be in conflict with the Constitution and repealed to the extent that it prescribes 6 years' imprisonment as minimum term of punishment for commission of an act of sexual nature without using force with a child younger than ten years of age.
(2 1) An act provided for in subsection (2) of this section, if committed by a person who has previously been punished:
1) for a criminal offence provided for in clause (2) 6) of this section;
2) for a criminal offence provided for in clause 1411 (2) 6) of this code; or
3) at least twice for an intentional criminal offence in the first degree where serious health damage is the consequence which constitutes the necessary elements of an offence,
shall be punished by six to fifteen years’ imprisonment or life imprisonment.
§ 141 1. Act of sexual nature against will
(1) Commission of an act of sexual nature with a person against his or her will by using force or taking advantage of a situation in which the person is not capable of initiating resistance or comprehending the situation and if it does not contain the necessary elements of an offence provided for in § 141 of this Code is punishable by one to five years’ imprisonment.
(2) The same act:
1) if committed against a person of less than eighteen years of age;
2) if committed by a group;
3) if serious damage is thereby caused to the health of the victim;
4) it causes the death of the victim;
5) it leads the victim to suicide or a suicide attempt; or
6) if committed by a person who has previously committed a criminal offence provided in this Division; or
7) if committed by the offender by taking advantage of the situation caused to the victim by means of narcotic or psychotropic substances in which the person is not capable of initiating resistance or comprehending the situation is punishable by three to fifteen years’ imprisonment.
(3) An act provided for in subsection (2) of this section, if committed by a person who has previously been punished:
1) for a criminal offence provided for in clause (2) 6) of this section;
2) for a criminal offence provided for in clause 141 (2) 6) of this code; or
3) at least twice for an intentional criminal offence in the first degree which necessary elements of a criminal offence include use of violence is punishable by three to fifteen years’ imprisonment or life imprisonment.
3. Question
The Constitutional Review Chamber of the Supreme Court of Estonia has not delivered any rulings/judgments regarding the right to be forgotten. The Criminal Chamber of the Supreme Court of Estonia has some case law regarding the usage of criminal record, but not specifically concerning a record of conviction for a sexual offence. For instance, the Criminal Chamber has said, that previous convictions (punishments imposed) can be taken into account when imposing a punishment (including supplementary punishment) for new crime committed only on condition that those previous convictions have not been deleted from the criminal record and that they are related to the new committed offence (the judgments from 20 March 2017 in case No. 3-1-1-6-17 and from 22 March 2017 in case No. 3-1-1-9-17). The Criminal Chamber has also stated, that information concerning punishment that is deleted from the database and transferred to the archives can not be taken into account when deciding whether to take someone into custody (arrest) or not (the rulings from 5 February 2016 in case No. 3-1-1-15-16 and from 9 May 2016 in case No. 3-1-1-36-16). The same goes to when deciding whether to release an offender from prison on parole or not (the ruling from 7 February 2018 in case No. 1-14-10087/66).
We hope you find these answers helpful!
With kind regards,
Karin Leichter-Tammisto
Legal Adviser to the Chief Justice
The Supreme Court of Estonia
tel +372 5014948
[email protected] <mailto:
[email protected]>
From: Michał Piechota <
[email protected] <mailto:
[email protected]> >
Sent: Monday, September 23, 2019 4:41 PM
To: Karin Leichter-Tammisto <
[email protected] <mailto:
[email protected]> >
Cc: Marek Domagala <
[email protected] <mailto:
[email protected]> >
Subject: Re: RE: Request for Information from the Constitutional Tribunal of Poland
Dear Ms Karin Leichter-Tammisto,
Thank you for your email. We are very much interested in Estonian regulations on the matters indicated in our questions, and therefore we would find your reply very useful.
Kindest regards,
Michał Piechota
Senior Researcher
The Department of Jurisprudence Research and Legal Analyses
The Office of the Legal Service
The Polish Constitutional Tribunal
al. Jana Christiana Szucha 12A,
00-918 Warsaw, Poland
On Mon, 09/23/2019 02:53 PM, Karin Leichter-Tammisto <
[email protected] <mailto:
[email protected]> > wrote:
Dear Mr Michał Piechota,
I apologise that we were not able to give an answer to your question within the time limits required. This being said I would still like to ask if you need the answers or is it too late? We could offer to answer these questions with two weeks maximum.
Please let me know if these answers would still be helpful to you.
With kind regards,
Karin Leichter-Tammisto
Legal Adviser to the Chief Justice
The Supreme Court of Estonia
tel +372 5014948
[email protected] <mailto:
[email protected]>
From: Michał Piechota <
[email protected] <mailto:
[email protected]> >
Sent: Thursday, August 8, 2019 11:55 AM
To: Info <
[email protected] <mailto:
[email protected]> >
Cc:
[email protected] <mailto:
[email protected]>
Subject: Request for Information from the Constitutional Tribunal of Poland
Dear Sir/Madam,
In the context of the case ref. no. SK 26/16, which is pending before the Constitutional Tribunal of Poland, the Tribunal is analysing matters related to the possibility of expunging (erasing) a criminal record. The review proceedings have been commenced by a constitutional complaint challenging a provision of Polish law which rules out the possibility of expunging (erasing) the criminal record of conviction (to a prison sentence that may not be conditionally suspended) for an offence against sexual freedom and decency where the aggrieved party was a minor under 15.The challenged provision constitutes an exception to the rule that, after the lapse of a certain period, the record of conviction is expunged (erased). The judges of the Tribunal who are examining the above-mentioned case are interested in how the legal institution of expunging (erasing) the record of conviction – in the context of sexual offences against minors – functions in your Country.
Therefore, I am writing to you with the kind request for information on the following matters, based on your Country’s legal system and the case law of your Court:
1. Does your Country’s legal system provide for:
the legal institution of expunging (erasing) the criminal record of conviction, which consists in treating the court’s conviction of an individual – after the lapse of a period specified by law – as if it has never occurred, and thus the individual’s name is deleted from the register of convicted persons?
After the expungement (erasure) of record and the deletion of the individual’s name from the register of convicted persons, this individual is regarded by law as a person with no criminal record.
2. If there is the legal institution of the expungement (erasure) of the record of conviction in your Country’s legal system, how are any exceptions thereto regulated?
By “exceptions” we mean situations where a conviction to a particular penalty or for a certain offence is not expunged (erased)?
Does the expungement (erasure) of the record of conviction apply to a conviction to a prison sentence for an offence against sexual freedom and decency where the aggrieved party is a minor?
3. Has your Court delivered any rulings on the constitutional right to be forgotten with regard to individuals convicted by a legally effective court judgment?
Is there any case law of your Court concerning the constitutional admissibility (or inadmissibility) of the lack of the expungement (erasure) of the record of conviction for a sexual offence, especially where the aggrieved party is a minor? If so, please provide us with information on such case law.
Due to work being carried out on the case SK 26/16, we would be most grateful if we could receive your replies to the above questions within 30 days.
Yours faithfully,
Michał Piechota
Senior Researcher
The Department of Jurisprudence Research and Legal Analyses
The Office of the Legal Service
The Polish Constitutional Tribunal
al. Jana Christiana Szucha 12A,
00-918 Warsaw, Poland