Law, courts and punishment – what is wrong?
This article provides a short overview of some of the problems that have arisen in applying punishment in practice.
In alternative proceedings, there is a conflict in between Subsection 238 (2) of the Code of Criminal Procedure and Subsection 45 (1) of the Penal Code. Questions arise as to whether sentencing under the minimum punishment terms set forth for the type of punishment in the Penal Code is possible and if it is, what risks are involved in such sentencing. What are the possible rationales for Subsection 238 (2) of the Code of Criminal Procedure taking precedence over the Penal Code? In such a case, can we speak of punishability of an act and establishment of limits only in the case of the Penal Code?
A problematic area has been sentencing people to a term equal to time already served. Is it possible for a person to demand compensation if a later punishment turns out to be much shorter than the time already served? Such grounds for claims for damage essentially do not currently exist. However, monetary punishments are often applied so that there would not be a need to activate previous suspended sentences.
Even though literature in the field of the law recommends that the basis in sentencing be one-third of the sanction set forth as punishment and Supreme Court jurisprudence recommends that the median be applied, actual practice shows that punishments are extremely light. This brings up the question of whether the ideology behind our Penal Code is functional, or whether Estonia is simply a place where very minor crimes are committed or whether the sentencing standards are too harsh. Penal practice is currently inconsistent and needs to be standardized in a wise, carefully-considered manner.