Minister says penal power filled with foolish provisions

Photo: Peeter Langovits

Minister of Justice Hanno Pevkur (Reform Party) is getting ready to defend greatest Penal Code reform of the decade, before parliament.

A forerunner of yours on this post, Rein Lang, took great delight in adding sections to the Code. Now, a minister from the same party sets out to delete some. 

Penal power entered into force in 2002, time passing it is unavoidable that things need to be changed. Penal Code has been tweaked here and there; even so, there has been no systemic change.

In 2010, then Chief Justice of the Supreme Court Märt Rask blurted it out before parliament – close to 60 per cent of our population finds itself in punishment register. Come to think of it: punishment register contains 660,000 person’s active or deleted punishments, for offences. That’ll give you the creeps. One wonders if we have gotten something wrong here, in Estonian state. That’s where the process started.

The sections leading to criminal punishments, right now, are maddeningly many.

Of the many changes, which is the weightiest for you?

Very hard to think where to start. I would not call this example the weightiest, but it does underline the importance of the big job undertaken. These are the foolish provisions in the current Penal Code. Like exhibiting violence to a minor. Sounds fair. But, unpicking the content: a person who attends a Bond-movie with a 15 year old may basically be punished, criminally.

The current section says that, for exposure of a person under 18 years of age one may be punished by up to one year of imprisonment. And violence is found in every Bond-movie. The amendment we are offering is limit the age to 14, with exposure to violence, and to refer directly to exposure to cruelty.

Another example would be the much-talked-about ball case. Kids play ball, outside; the ball bounces into the neighbour’s yard; should the father go get the ball, pursuant to current law he has illegally intruded into other people’s property. For this, a year in jail looms. That’s absolute foolishness.

Or, thirdly – even more foolish, I would say. That’s the traffic lights case i.e. damaging traffic control system. So, basically, should you be involved in an accident and push a traffic lights post down, you will disturb traffic lights system over an entire area. For this, basically, you may be criminally punished.

These and other are examples of overcriminalisation. Such measures are not prudent.

The bill is littered with the complex term «prejudition». The word standing for the principle that acts, punishable as misdemeanours anyway, may not undergo criminal punishment.

A main author of the amendments, law professor Jaan Sootak, has taken a very clear stand that we cannot have it, in our law, that an offender can be punished two different ways for the same deed. Simply put – should a person commit a misdemeanour, he must be punished for a misdemeanour, not a criminal offence.

Let’s take a person living close to the border. He is no smuggler, he just crosses the border with cigarettes for his own personal use – the amount slightly exceeding the allowed limit. He has committed a misdemeanour. Should that happen the second time, he will undergo criminal procedure. That’s not a prudent approach.

People tend to forget that punishment for misdemeanour is also a punishment. It is also possible to jail people for misdemeanours. The aim of punishments is to influence people, and punishments for misdemeanours also do their job.

Let me ask about the major changes, one by one. Let’s start by this: the option of compulsory dissolution of companies judged guilty will disappear as form of criminal punishment.

Here, generally, we should understand that, as a rule, punishing a legal person criminally will, as a rule, mean pecuniary punishment. From the state’s point of view, compulsory dissolution rather is a civil law measure; and if pecuniary punishment has been imposed on a company, it is the state’s interest to get the money. Should the company be dissolved, the chances to get the punishment money fall near zero.

You are raising the minimum daily rate i.e. pecuniary punishments will substantially increase. That may be interpreted as another step by state to fill its meagre coffers. 

Punishments need to be effective. The minimal daily rate for pecuniary punishments, €3.2, dates back to 2001 when the code entered into force; then, the sum was 50 Estonian kroons and minimal wages 1,600 kroons. Back then, the rate was one 1/32 of minimum wage, now it’s 1/100. The proportions significantly changed, the bill proposes lifting the rate to €10.

Trying to keep up with inflation?

That’s unavoidable. I believe it is rather the overly lenient punishments that hurt the people’s sense of justice. €30 fines for offences are no longer enough.

Right now, criminalisation starts at €64; in the future, however, to launch a criminal case the damage needs to be €200.  With such a high ceiling, lots of pickpockets and thieves at stores come clean, criminally.

That’s directly linked to the daily rate. On other words – the damage must be 20 minimal daily rates, at least.

A drug addict and serial thief will grab a €199 bike and escape a criminal case? For the victim, that’ll seem unfair...

It makes no sense to bring a single example like this. That would make the penal power revision look tilted. I advise to look at the offences system as a whole – both misdemeanour and criminal punishments. I repeat – misdemeanour punishment is also a punishment, also allowing for the offender to be jailed. By nature, detention is no different than imprisonment. Just a  different name. For a person, it makes no difference is he is detained or imprisoned – he still has been deprived of his liberty.

The bill contains an interesting nuance related to electronic surveillance of prisoners released before term: alcohol control is prescribed.

As soon as we imported the electronic surveillance system, the issue of alcohol control devices was tabled. Even now, people under electronic control have a telephone-sized device in their home. To this, additional functions can be added.

People blowing into the apparatus?

Yes; as an additional requirement, people may be told not to consume alcohol. Then they will have to blow into the device, and the data will reach the centre. Of course, the system will not be launched immediately, but it is prudent to provide for it in law.

Penal Code is getting a new section – participation in a fight. This ought to make proving guild of fighters mush easier. With three people battering the fourth, will the investigators no longer need to verify who exactly caused the injury?

In fights, each participant’s guilt still needs to be proven. Fighters will be criminally prosecuted if serious damage to health has been caused to the victim.

Prosecutor’s Office hoped that the Penal Code would shed the crime: intentional evasion of supporting a child by parent. That, they say, has no practical value. Still, it remains.

This is compromise between interior ministry and justice ministry. Should the parliament so wish, I’m ready to discuss it again. In the initial version, this was suggested to be misdemeanour.

The goal being to get the money from the parent for the child, not to send the parent to prison. Once you send the parent behind bars, you get nothing. On the other hand, criminalisation would have a preventive effect on the parent – the parent needs to consider being punished criminally should he fail to support the child.

Decriminalisation of selling alcohol to minors – was that also a compromise as required by somebody?

In the final version, it still remained a criminal offence. At the last moment, we so agreed with the interior minister.

We introduced the issue of this being repeated. For a repeated act, imprisonment up to six months may follow. 

Coalition partner IRL has always stresses zero tolerance towards drugs. Still, it reads in the new code, that taking a small amount of drugs across the border is no longer a crime.

There, we agreed that a small amount of drugs and medicine is criminally punishable in case it was intended to be passed on.

I’ll jump to crimes against the state. For belonging to an association aimed against the constitutional order of the Republic of Estonia, instead of the current six years in prison, lifelong imprisonment may follow as maximum punishment. That’s tough.

Yes, punishments for crimes against the state will toughen. Right now, the law contains a contradiction, as even for belonging to a criminal association specialised in thefts, stricter punishments are available than for belonging to an anti-Estonia organisation.

Let’s also take aggression. The current law prescribes imprisonment up to 12 years; the new allows for 20 years to lifelong.

What will aggression cover?

The law says it is leading an act by one state against another state, or participation in it. We need to defend our state and send a clear signal that attacking sovereignty brings severe punishment.

You’re also toughening punishments for attacking the police.

The will no longer be pecuniary punishments for that. We will treat an attack against a police officer as attack against the state. That’s the way it is, the world over.

We will raise the lower limit and split punishments into two. Should a drunken fellow pick on a policeman and a fight break out, the punishment is up to five years in prison. The other subsection includes a group fight (like it happened in Viljandi); will differentiate a situation when objects will be involved (bats, pales, bricks etc); also considering repeated nature of such acts.

At the same time, you totally deleted insulting and defaming a representative of power. In the future, may one curse a cop with no fear of punishment?

Talking about badmouthing a policeman: it is disproportional to criminally charge someone for obscenity. This must be treated as misdemeanour. For comparison’s sake: should two persons insult each other, they should settle the dispute by way of civil proceedings.

There is a section we might just as well call the [Anna-Maria] Galojan Section. This is about evasion of service of sentence. Right now, No liability for that, currently. But there will be, in times to come.

Yes. We will formulate intentional evasion of imprisonment.

Weightiest change in Penal Code

•    Estonia has close to 1,300 necessary elements of criminal offences or misdemeanour, in 148 acts. A little over thousand will remain. Over 200 sections will be amended; 48 declared null and void; 17 added.

•    Pursuant to law, limits to damage caused by criminal offence and misdemeanour are linked to minimum wages – by the bill, the link is severed. In times to come, significant damage is over €4,000, large damage €40,000, and especially large damage over €400,000.

•    Minimal daily rate will be raised from current €3.20 to €10. This will affect the line between misdemeanour and criminal offence – from current €64 to €200 pursuant to bill. Lots of criminal offences against property will, in days to come, be treated as misdemeanours.

•    Premature release from prison. For minors, special conditions will be created – a minor is to be released having served at least half of term for crime of second degree; two thirds for crime of first degree.

•    Premature release limits lowered from 6 to 4 months.

•    Shock imprisonment of minors will be set 30 days ceiling.

Sections

§ 1,191 (participation in a fight). Participation in a fight, as well as participation in an attack by two or more persons, resulting in serious damage to health or death, will be punished by imprisonment up to five years. The section is intended for cases where the victim died and, during the procedures, it proved impossible to verify who of the attackers caused the death.

§ 180 (exhibiting violence to minors) will become a misdemeanour. The age limit will be lowered from 18 to 14; only exhibiting cruelty will constitute a misdemeanour.

§ 235 (unconstitutional organisation); punishment will be extended from 6 years to 5–15 years, or lifelong imprisonment.

§ 257 (arbitrary action) will be declared null and void. The acts listed in the section are punishable separately.

§ 266 (illegal entry) subsection 1 will become misdemeanour. Currently, secretly climbing the neighbour’s fence is a criminal offence. Entry into dwelling and entry by violence will remain criminal offence. Aggravating circumstances like group will be excluded – saving minors acting naughty. 

§ 275 (defamation or insult against of representative of state authority) will be changed into misdemeanour.

§ 293, 285 and 297 (accepting, receipt or mediating of gratuities) will be declared null and void and be linked with bribes. While accepting gratuities and bribes may be differentiated, mediation thereof cannot.

§ 380 (failure to call meeting of shareholders or members of commercial association) will no longer be criminal offence. It being unclear when the net assets criterion would be met i.e. when the inactivity becomes criminal.

§ 384-1 will be added (unequal treatment of creditors). Usually, preferring one creditor to another is not reason for insolvency; at the same time, this is a widespread misdemeanour, in need of criminalisation.

§ 385-1 (failure to perform obligation to submit petition for bankruptcy) no longer criminal offence.

§ 398 (abuse of inside information) so called slight violation will be considered misdemeanour; with aggravation circumstances it will be criminal offence (such as when significant damage is caused or significant gain made).