No. 24




Post-Sentence Detention Unconstitutional – What Now?

15 December 2011


RiTo No. 24, 2011

  • Rauno Kiris

    Master’s Candidate, Faculty of Law, University of Tartu

  • Andres Parmas

    Adviser to the Criminal Chamber, Supreme Court of Estonia, Lecturer of Criminal Law, University of Tartu

On 21 June 2011, the general assembly of the Supreme Court of Estonia in Case No. 3-4-1-16-10 declared the institution of post-sentence detention, established for dealing with dangerous repeat offenders, to be unconstitutional. The purpose of the article is to draft possible answers to the question “How will the problem of habitual criminals that are dangerous to the society be dealt with in the future?”

The existing system of sanctions is unable to offer solution to the problem of habitual crimi-nals that are dangerous to the society because the existing model guilt-based punishment does not allow for adequate consideration of the dangerousness of a person in sentencing of punishment; the punishment based only on the guilt of a person is not always enough for ensuring the safety of society. The attempts to aggravate the punishments of repeat offenders within the framework of sanctions would result in the general increase of the repressiveness of punishments, and would therefore be undesirable. As possible further solutions, the Penal Code could be amended by adding special parts (in particular, the qualified necessary elements of a criminal offence for repeat offenders) or the General Part of the Penal Code could be modified (subsection 56(1) amended or special provisions on punishments added for qualified recidivism), in order to allow for implementing the possibilities offered by monistic approach. Unfortunately none of these solutions is without drawbacks. Monistic solution of adding a special part would require the imposing of extremely repressive consequences also to persons who have committed acts that would bring along much lighter sanctions if the judge were left more freedom for assessment. The solution involving the General Part – amending subsection 56(1) of the Penal Code as regards to habitual criminals – in its turn seems to be precluded by the structure of the argumentation of the general assembly in the Case the article is based on.

Full article in Estonian