ALTERNATIVES TO PROSECUTION

IN COUNCIL OF EUROPE MEMBER STATES

QUESTIONNAIRE

1.         Concerning the legal framework: does your country follow a system of mandatory or discretionary prosecution? Has the situation changed during the last two years or is a change envisaged? In your country, what is the percentage of criminal law responses to offences perpetrated by identified offenders in the years 2005 and 2006? Amongst those, what is the proportion of alternative to prosecution responses?

According to the Code of Criminal Procedure, CCP(entered into force 1 July 2004) there are following possibilities for termination of criminal proceedings:

-          if the unlawful act was committed by a minor (14-18 years old), see CCP §201;

-          in event of lack of public interest in proceedings and in case of negligible guilt, CCP §202;

-          due to lack of proportionality of punishment, CCP §203;

-          concerning criminal offences committed by foreign citizens or in foreign states, CCP §204;

-          in connection with assistance received from person upon ascertaining facts relating to subject of proof, CCP §205.

From 2007 the termination of criminal procedure is also possible on the basis of conciliation, CCP §203¹.

According to the Code of Criminal Procedure if a person has committed a criminal offence in the second degree for which a pecuniary punishment may be imposed and the person does not have a permanent or temporary place of residence in Estonia, an investigative body may, with the consent of the person, substitute the detention of the person as a suspect by a payment covering the procedure expenses, the potential pecuniary punishment and the damage caused by the criminal offence into the public revenues, CCP §219.

Prosecutor General has given general guidelines for the Prosecutors in order to ensure the unified and effective implementation of section 202 and 203 of the Code of Criminal Procedure.

In 2006, 30% of the final procedural decisions were made using above mentioned possibilities for termination of criminal procedure

-          the unlawful act was committed by a minor, 5%;

-          in event of lack of public interest in proceedings and in case of negligible guilt, 23%;

-          due to lack of proportionality of punishment, 2%.

The other possibilities for termination of criminal procedure are used very rarely that is why we can not give the exact percentage and the conciliation procedure is used only from 2007.

We have added to the questionnaire as the annex the sections from our Code of Criminal Procedure from where you can easily find the answers to the questions 2-7 from the Questionnaire.

2.         In the event of an offence, are your judicial authorities able to choose between criminal law measures and other responses? If so, please specify which. Is that choice definitive or can it be challenged?

3.         Who decides on this choice?  What is the specific role of the prosecutor?

4.         Are there criteria for abandoning the criminal prosecution approach?

5.         Could it happen that a serious offence escapes any prosecution because of alternative measures?

6.         Are victims informed beforehand, consulted, and can they challenge the decision in the case when criminal prosecution was dropped, and how are their rights preserved?

7.         Given that the response chosen gives rise to obligations in respect of the persons subjected to it - such as the reparation of damage - are they able to lodge an appeal with an impartial authority (for example, for validation by a judge of a restraining order or an obligation to undergo training proposed by way of settlement)?

8.                  Can you give specific examples of alternatives to prosecution which you see as particularly well suited to the prevention of reoffending by the perpetrator and consideration of victims' interests?

Unfortunately we do not have information confirmed by researches which alternative to prosecution is the most effective for the prevention of reoffending.

9.         Is there a method in your country for assessing the effectiveness of alternatives to prosecution and what is it?

We do not have specific method for assessing the effectiveness of alternatives to prosecution. However, the Ministry of Justice have organised qualitative and quantitative researches to assess the effectiveness of above mentioned possibilities.

10.       Can you provide the contact details (with their consent) of someone clearly identified as a specialist on these questions and supply examples of their work to back up your choice?

Mr Tristan Ploom

Assistant Prosecutor

Office of the Prosecutor General

Wismari 7

15188 Tallinn

Phone +3726139400

Fax +37261393402

11.       Other comments


Code of Criminal Procedure

§ 201. Referral of materials to juvenile committee

(1)        If commencement of criminal proceedings is refused or a criminal proceeding is terminated for the reason that the unlawful act was committed by a minor who was incapable of guilt on the grounds of hid or her age, the investigative body or Prosecutor’s Office shall refer the materials of the criminal matter to the juvenile committee of the place of residence of the minor.

(2)        If a Prosecutor's Office finds that a minor who has committed a criminal offence in the age of 14 to 18 can be influenced without imposition of a punishment or a sanction prescribed in § 87 of the Penal Code, the Prosecutor's Office shall terminate the criminal proceeding by a ruling and refer the criminal file to the juvenile committee of the place of residence of the minor.

(3)        Prior to referral of materials to a juvenile committee, the nature of the act with the elements of a criminal offence and the grounds for termination of the criminal proceeding shall be explained to the minor and his or her legal representative.

§ 202. Termination of criminal proceedings in event of lack of public interest in proceedings and in case of negligible guilt

(1)        If the object of criminal proceedings is a criminal offence in the second degree and the guilt of the person suspected or accused of the offence is negligible, and he or she has remedied or has commenced to remedy the damage caused by the criminal offence or has paid the expenses relating to the criminal proceedings, or assumed the obligation to pay such expenses, and there is no public interest in the continuation of the criminal proceedings, the Prosecutor’s Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused.

(2)        In the event of termination of criminal proceedings, the court may impose the following obligation on the suspect or accused at the request of the Prosecutor’s Office and with the consent of the suspect or the accused within the specified term:

1)         to pay the expenses relating to the criminal proceedings or compensate for the damage caused by the criminal offence;

2)         to pay a fixed amount into the public revenues and to be used for specific purposes in the interest of the public;

3)         to perform 10 to 240 hours of community service. The provisions of subsections 69 (2) and (5) of the Penal Code apply to community service.

(3)        The term for the performance of obligations listed in subsection (2) of this section shall not exceed six months.

(4)        A request of a Prosecutor’s Office shall be adjudicated by a ruling of a judge sitting alone. If necessary, the prosecutor and the suspect or accused and, at the request of the suspect or accused, also the counsel shall be summoned to the judge for the adjudication of the request of the Prosecutor's Office.

(5)        If the judge does not consent to the request submitted by the Prosecutor’s Office, he or she shall return the criminal matter on the basis of his or her ruling for the continuation of the proceedings.

(6)        If a person with regard to whom criminal proceedings have been terminated pursuant to subsection (2) of this section fails to perform the obligation imposed on him or her, the court, at the request of the Prosecutor's Office, shall resume the criminal proceedings by an order. In imposition of a punishment, the part of the obligations performed by the person shall be taken into consideration.

(7)        If the object of criminal proceedings is a criminal offence in the second degree for which the minimum rate of imprisonment is not prescribed as punishment or only a pecuniary punishment is prescribed as punishment by the Special Part of the Penal Code, the Prosecutor's Office may terminate the criminal proceedings and impose the obligations on the grounds specified in subsections (1) and (2) of this section. The Prosecutor's Office may resume terminated criminal proceedings by an order on the grounds specified in subsection (6) of this section.

§ 203. Termination of criminal proceedings due to lack of proportionality of punishment

(1)        If the object of criminal proceedings is a criminal offence in the second degree, the Prosecutor's Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused and the victim if:

1)         the punishment to be imposed for the criminal offence would be negligible compared to the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence;

2)         imposition of a punishment for the criminal offence cannot be expected during a reasonable period of time and the punishment which has been or presumably will be imposed on the suspect or accused for the commission of another criminal offence is sufficient to achieve the objectives of the punishment and satisfy the public interest in the proceeding.

(2)        A request of a Prosecutor’s Office shall be adjudicated by a ruling of a judge sitting alone. If necessary, the prosecutor and the suspect or accused and, at the request of the suspect or accused, also the counsel shall be summoned to the judge for the adjudication of the request of the Prosecutor's Office.

(3)        If the judge does not consent to the request submitted by the Prosecutor’s Office, he or she shall return the criminal matter on the basis of his or her ruling for the continuation of the proceedings.

(4)        If criminal proceedings were terminated taking into consideration a punishment imposed on the suspect or the accused for another criminal offence and the punishment is subsequently annulled, the court may, at the request of the Prosecutor’s Office, resume the criminal proceedings by an order.

(5)        If criminal proceedings were terminated taking into consideration a punishment which will presumably be imposed on the suspect or the accused for another criminal offence, the court may, at the request of the Prosecutor’s Office, resume the criminal proceedings if the punishment imposed does not meet the criteria specified in clauses (1) 1) and 2) of this section.

(6)        If the object of criminal proceedings is a criminal offence in the second degree for which the minimum rate of imprisonment is not prescribed as punishment or only a pecuniary punishment is prescribed as punishment by the Special Part of the Penal Code, the Prosecutor's Office may terminate the criminal proceedings on the grounds specified in subsection (1) of this section. The Prosecutor's Office may resume terminated criminal proceedings by an order on the grounds specified in subsections (4) and (5) of this section.

§ 2031. Termination of criminal proceedings on the basis of conciliation

(1)        If facts relating to a criminal offence in the second degree which is the object of criminal proceedings are obvious and there is no public interest in the continuation of the criminal proceedings and the suspect or the accused has reconciled with the victim pursuant to the procedure provided for in § 2032 of this Code, the Prosecutor’s Office may request termination of the criminal proceedings by a court with the consent of the suspect or accused and the victim. Termination of criminal proceedings is not permitted:

1)         in criminal offences specified in §§ 122, 133, 134, 136, 138, 139, 141–143, 214 and 263 of the Penal Code;

2)         in criminal offences committed by an adult person against a victim who is a minor;

3)         if the criminal offence resulted in the death of a person;

4)         in crimes against humanity and international security, against the state, criminal official misconduct, crimes dangerous to the public and criminal offences directed against the administration of justice.

(2)        A request of a Prosecutor’s Office shall be adjudicated by a ruling of a judge sitting alone. If necessary, the conciliator, the prosecutor, the victim, the suspect or accused and, at the request of the suspect or accused, also the counsel shall be summoned to the judge for the adjudication of the request of the Prosecutor's Office.

(3)        In the event of termination of criminal proceedings, the court shall impose, at the request of the Prosecutor’s Office and with the consent of the suspect or the accused, the obligation to pay the expenses relating to the criminal proceedings and to meet some or all of the conditions of the conciliation agreement provided for in subsection 2032 (3) of this Code on the suspect or accused. The term for the performance of the obligation shall not exceed six months. A copy of the ruling shall be sent to the conciliator.

(4)        If the judge does not consent to the request submitted by the Prosecutor’s Office, he or she shall return the criminal matter on the basis of his or her ruling for the continuation of the proceedings.

(5)        If a person with regard to whom criminal proceedings have been terminated pursuant to subsection (1) of this section fails to perform the obligations imposed on him or her, the court, at the request of the Prosecutor's Office, shall resume the criminal proceedings by an order.

(6)        If the object of criminal proceedings is a criminal offence in the second degree for which the minimum rate of imprisonment is not prescribed as punishment or only a pecuniary punishment is prescribed as punishment by the Special Part of the Penal Code, the Prosecutor's Office may terminate the criminal proceedings and impose the obligations on the grounds specified in subsections (1) and (3) of this section. The Prosecutor's Office may resume terminated criminal proceedings by an order on the grounds specified in subsection (5) of this section.

(7)        A victim has the right to file an appeal against a ruling on termination of the criminal proceeding made on the basis of this section within ten days as of receipt of a copy of an order on termination of the criminal proceedings pursuant to the procedure provided for in §§ 228–232 or §§ 383–392 of this Code.

§ 2032. Conciliation proceedings

(1)        The Prosecutor’s Office or court may, on the bases provided for in subsection 2031 (1) of this Code, send the suspect or accused and the victim to conciliation proceedings with the objective of achieving conciliation between the suspect or accused and the victim and remedying of the damage caused by the criminal offence. The consent of the suspect or accused and the victim is necessary for application of conciliation proceedings. In the case of a minor or a person suffering from a mental disorder, the consent of his or her parent or another legal representative or guardian is also required.

(2)        The Prosecutor's Office or court shall send the order or ruling on application of conciliation proceedings to the conciliator for organisation of conciliation.

(3)        The conciliator shall formalise the conciliation as a written conciliation agreement which shall be signed by the suspect or accused and the victim and the legal representative or guardian of a minor or a person suffering from a mental disorder. A conciliation agreement shall contain the procedure for and conditions of remedying of the damage caused by the criminal offence. A conciliation agreement may contain other conditions.

(4)        The conciliator shall send a report with a description of the course of conciliation to the Prosecutor’s Office. In event of conciliation, a copy of the conciliation agreement shall be annexed to the report.

(5)        After the termination of the criminal proceedings, the conciliator shall verify whether or not the conditions of the conciliation agreement approved as an obligation pursuant to the procedure provided for in subsection 2031 (3) of this Code are met. A conciliator has the right to request submission of information and documents for confirmation of the performance of the obligation. The conciliator shall notify the Prosecutor’s Office of performance of the obligation failure to perform the obligation.

(6)        The conciliator has the right, in performing his or her duties, to examine the materials of the criminal matter with the permission of and to the extent specified by the court. A conciliator shall maintain the confidentiality of facts which have become known to him or her in connection with the conciliation proceedings. A court or a Prosecutor’s Office may summon a conciliator for oral questioning in order to clarify the content of the agreement of the conciliation proceedings.

§ 204. Termination of criminal proceedings concerning criminal offences committed by foreign citizens or in foreign states

(1)        A Prosecutor's Office may terminate criminal proceedings by an order if:

1)         the criminal offence was committed outside the territorial applicability of this Code;

2)         the criminal offence was committed by a foreign citizen on board a foreign ship or aircraft located in the territory of the Republic of Estonia;

3)         an accomplice to the criminal offence committed the criminal offence in the territory of the Republic of Estonia but the consequences of the criminal offence occurred outside the territorial applicability of this Code;

4)         a decision concerning extradition of the alleged criminal offender to a foreign state has been made;

5)         the person has been convicted and has served the sentence in a foreign state and the punishment applicable in Estonia is not significantly more severe than the punishment served, or if the person has been acquitted in a foreign state.

(2)        A Prosecutor's Office may, by an order, terminate criminal proceedings concerning a criminal offence which was committed in a foreign state but the consequences of which occurred in the territory of the Republic of Estonia if the proceedings may result in serious consequences for the Republic of Estonia or are in conflict with other public interests.

§ 205. Termination of criminal proceedings in connection with assistance received from person upon ascertaining facts relating to subject of proof

(1)        The Public Prosecutor's Office may, by its order, terminate criminal proceedings with regard to a person suspected or accused with his or her consent if the suspect or the accused has significantly facilitated the ascertaining of facts relating to a subject of proof of a criminal offence which is important from the point of view of public interest in the proceedings and if, without the assistance, detection of the criminal offence and collection of evidence would have been precluded or especially complicated. Criminal proceedings shall not be terminated in respect of the suspect or the accused who has committed a criminal offence for which the lightest punishment is prescribed as at least six years’ imprisonment or the most severe punishment is prescribed as life imprisonment in the Penal Code.

(2)        The Public Prosecutor's Office may, by its order, resume proceedings if the suspect or the accused has discontinued facilitating the ascertaining of facts relating to a subject of proof of a criminal offence or if he or she has intentionally committed a new criminal offence within three years after termination of the proceedings.

§ 219. Substitution of detention of suspect

(1)        If a person has committed a criminal offence in the second degree for which a pecuniary punishment may be imposed and the person does not have a permanent or temporary place of residence in Estonia, an investigative body may, with the consent of the person, substitute the detention of the person as a suspect by a payment covering the procedure expenses, the potential pecuniary punishment and the damage caused by the criminal offence into the public revenues.

(2)        A statement a copy of which is sent to the Prosecutor's Office shall be prepared on the substitution of the detention of a suspect and on the receipt of a payment into the public revenues.