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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

Development of Estonian Criminal Law

Jaan Sootak
pp. 52-55

Tiny Estonia does not have anything comparable to the written sources of law of the Germans, Scandinavians or Russians. The reason for this is the fact that during the time written law and state legislation were spreading elsewhere in Europe, Estonia was not yet a state.*1 Due to Estonia’s geopolitical location, discussion of Estonian law mainly revolves around the influences of various legal systems and their amalgamation. As a result, the notion of Estonian criminal law boils down to the question of which of the criminal laws that have been in force here were formulated in this country and therefore took the local characteristics into account, i.e. the way of life and thinking of the people, cultural traditions, economic relations, level of jurisprudence, and many other things.

The view of Baltic-German law historians concerning the existence of criminal law and indeed all law in ancient Estonia before the period of the German and Danish conquests is that law developed in Estonia only in the 13th century. For example, F. G. Bunge claims that the arrival of Germans was the beginning of "German life in Livonia" and that German common law and town law were "not only the precurser but also the direct source" of Livonian law.*2

However, this opinion cannot be seen as having a singular meaning. It is important to distinguish between common law and written law. Indeed, Estonians did not have the latter until the arrival of foreign conquerors and in this context the first source of law in conquered Estonia may be considered to be Waldemar-Erik’s feudal law of 1315. This is a legal instrument formulated in the counties of Harju and Viru, which were under Danish rule, and is based on the laws handed down from the period of King Waldemar II (1202-1241) and renewed and confirmed by King Waldemar VII. Among other things, this law grants vassals the hand and neck right, i.e. the right to punish the native peasants by corporal and capital punishments. As for common law, it undoubtedly already existed for the natives, which Baltic-German law historians do not actually deny. Referring to the chronicles by Henrik the Lett (1224-1227) and Christian Kelch (1695), F. G. Bunge claims that blood-feud and polygamy existed among Estonians. It is also recognised that peasant law which applied to the natives was largely based on local common law rules. On this basis Estonian law historian Jüri Uluots (1890-1945) developed his continuity theory according to which native common law was included in both surrender agreements with conquerors and in post-conquest peasant law. The contractual transfer of power and the survival of the law of Estonians throughout centuries of foreign rule provide the grounds for J. Uluots’s claim of the continuity of Estonian law until the establishment of the first Republic of Estonia in 1918.

It is a historical fact that the common law of the pre-conquest times continued also in the post-conquest period. Nevertheless, it is quite another matter how justified it is to speak of criminal law characteristics specific to a particular people if we are dealing with such wide spread criminal law customs like blood-feud, composition system, etc. In the case of ancient Estonia, too, one can speak of general criminal law customs, although with certain peculiarities. Estonian law historians Jüri Uluots and Leo Leesment claim, for example, that early criminal law of Estonia has many features in common with the criminal laws of Gotland and Russia. For example, § 9 of the Peasant Law of Livonians prescribed man-money of 40 marks in silver for killing a peasant û a fine known only in the peasant laws of the Baltics, as other sources (land law and town law) prescribed different rates. At the same time, Russkaya Pravda, the 11th century source of law of Old Russia, prescribed a fine of 40 grvinas for killing a person belonging to the court of a prince (§ 11).

The criminal law of the middle Middle Ages in Estonia was predominantly German law. During 1322-1337, a book of law which became known as Liivimaa õiguspeegel ("Law Mirror of Livonia") was compiled in Estonia, and was actually a variation of the Sachsenspiegel (compiled 1224-1230), adapted to Estonian conditions. Although the differences between the two sources of law were not great, they were nevertheless noticeable. For example, the Liivimaa õiguspeegel did not contain court duelling which had not become customary in this part of the world and which later was prohibited altogether. Compared to the Sachsenspiegel, a rather significant part was omitted, namely the provisions governing Jews, because there were no Jews in ancient Livonia. The age of majority begins at the age of 21 according to the Sachsenspiegel, whereas the line is drawn at the age of 20 in the Liivimaa õiguspeegel; the latter allegedly originates from ancient Estonian legal customs.

Town law as marketplace law, of course, existed as local common law already before the conquest of Estonia, although here too we have to take into account the activities of merchants, mainly from Scandinavia and Novgorod, and the development of customs suitable for them. Whether Novgorod law in its original form may be viewed as Russian law at all is an issue, since with its Finno-Ugric roots ethnically and Scandinavian influences politically, this element of statehood cannot be considered a truly Russian phenomenon. For example, sections 1, 10 and 11 of Russkaya Pravda grant special status to aliens, including the Varangians and Kolbiangians. While the former denotes Scandinavians, the exact meaning of the latter word is not settled. Some authors connect the term to Kolberg (today Kolobrzeg) in Pommer, Poland, where a stronghold of Slavs and a certain state-like entity developed in the 11th century. A more likely version is that Kolbiangians are related to the north-eastern area of present-day Russia where toponyms of this word stem occur even today (e.g. Kolpino). The village of Kolberg is situated near the Sjass River. In one of the additional sections of Russkaya Pravda the Kolbiangians are referred to as heathens. The Kolbiangian name has also been connected with kylfings, mentioned in Icelandic sagas and said to live in the above-mentioned regions. It is generally accepted that in those days, these areas were inhabited by Finno-Ugric peoples and thus, there is sufficient reason to believe that Kolbiangians were Finno-Ugric.

In the towns developing in Estonia, however, German law became established: in Tallinn first Visby law, and after 1248, Lubeck law, whereas Tartu and Viljandi, for example, were under Riga town law which in turn originated from Hamburg.

The impact of German law as the origin of criminal law in Estonia is evident also in the direct application of Karolina (Constitutio Criminalis Carolina), the German state law passed in 1532. The primary examples of this may be found in the court practice in Tallinn and North-Estonia. To a great extent, application of the Karolina falls into the time of Swedish rule (1561-1710). The Swedes tried to facilitate application of the Karolina in order to standardise court practice and to reduce legal particularism. Underlying this was, of course, the struggle against German influence. Generally, however, the German legal system survived in Estonia and the application of Swedish law did not significantly weaken it in subsidio. Nevertheless, attempts were made to enact certain Swedish laws, e.g. immoral crimes law of 18 May 1653 and of 30 May 1698 (adultery and incest), and the bills of 23 January 1680 in the matters of infanticide and duels. Also, the army codes of the 17th century apparently contained the first criminal law regulations in Estonian. Toward the end of the Swedish rule period, torture in court proceedings was prohibited.

In principle, the situation changed very little upon Estonia’s annexation to Russia in 1710, an act which was fully concluded by the Nystad Peace Treaty in 1721. During the early period of Russian rule and perhaps later as well, a mixture of the Karolina, Swedish state law and Russian law was applied. Criminal law rules in Estonian were included also in the peasant laws of the early 19th century. A significant change occurred in Estonia in 1846 when the Old Penal Code of 1845 was established. This Code was the first systemic collection of criminal law rules in the Russian Empire. The positive role of the Old Penal Code was the fact that it put an end to legal particularism and standardised court practice. On the other hand, there were strong elements of feudalism in the Code which retained the legal inequality of people. For example, liability was often dependant on the religious views of a person and many rules affirmed the patriarchal mindset. The Old Penal Code remained effective even after the creation of the independent Republic of Estonia in 1918 and was valid until 1935. Although that Code was never translated into Estonian, its impact on the 1929 Criminal Code of the Republic of Estonia and, through the later Soviet Russian criminal law, on present-day Estonian criminal law makes itself felt in the laws in force, dogma and court practice.

At first, the independent Republic of Estonia of 1918 had to retain the Old Penal Code. Naturally, it was impossible to keep such an obsolete code in force for an extended period and thus, the drafting of a new criminal code became a very urgent matter. Even so, laws had to be enacted in response to specific situations, e.g. the regulation of 19 January 1920 "Against speculation and usury". Also, suspended custodial punishment was established by a law of 2 July 1920, without waiting for the new code. The latter was, in principle, included in the Criminal Code of 1929 (Chapter 4, § 27û32). It should be mentioned here that one of the leading drafters of the new Code, Karl Saarmann, worked in close co-operation with his teacher Andreas Bjerre, from Sweden, the then professor of criminal law at the University of Tartu. Professor Bjerre had also supervised Karl Saarmann’s master’s thesis which dealt with the problems concerning suspended custodial punishment. The Criminal Code of 1929 introduced the Franco-Belgian sursis-system for suspended custodial punishment.

It was felt that the newly-born Republic of Estonia lacked the ability to create an absolutely new, original code. Several possible models were therefore considered: the German Strafgesetzbuch of 1871, an example of classic criminal law, the Norwegian Criminal Code of 1902, an example of the modern, sociological trend, the Italian Criminal Code bill of 1921 (progetto Ferri), and others. In the end, the scales tipped in favour of the Russian New Penal Code of 1903. On the one hand, it was a European-style code which had been translated into German and was therefore also known in the West. On the other hand, it ensured a certain legal continuity with the Code of 1845 whose implementation had resulted in extensive court practice. Latvia and Lithuania chose the same path; according to K. Saarmann, unification of the criminal laws of all three Baltic countries had also been considered.

The Criminal Code of the Republic of Estonia was adopted by the Riigikogu, the parliament of Estonia, on 26 March 1929 and entered into force on 1 February 1935. Substantively, the Criminal Code formed only one part of the legislation dealing with the law of punishment, which also included the Criminal Court Procedure Code of 21 September 1934, the Discipline Code of 19 September 1934, the Taxation Penalty Code of 21 September 1934, the Imprisonment Code of 18 February 1931, and the Criminal Code of the Regular Armed Forces of 19 September 1934.

When Estonia was forcibly annexed to the Soviet Union, the Russian FSR Criminal Code of 1926 came into force along with the attendant institutions which later, under Stalinist totalitarianism, carried out repressions. Examples of such repression are offence by analogy (§16), punishment of a person not only for a specific act but also because he or she is a threat (§ 7), application of punitive repression to family members of the offender (subsection 58-1 (2)). Pursuant to the decrees of 6 November 1940 of the Supreme Soviet of the USSR and of 16 December 1940 of the Supreme Soviet of the Estonian SSR, the Russian Criminal Code of 1926 entered into force in Estonia, with retroactive effect concerning acts committed in the Republic of Estonia during 1919-1940. This provided the grounds for Soviet repressive organs to interpret any activity which had occurred in the Republic of Estonia before 1940 as criminal and led to the repression of tens of thousands of people, mainly during 1940-1959.*3

The Estonian SSR Criminal Code of 1961, established within the framework of criminal law reform of the republics of the Soviet Union, during 1958-1961, overcame the direct Stalinism of the Soviet Russian Criminal Code. Specifically, offences by analogy were abandoned and, at least formally, the principle of nullum crimen nulla poena sine lege was followed and the system of sanctions was liberalized. This Code was nevertheless not completely free of the Stalinist legacy in criminal law. This was probably most evident in the chapter dealing with crimes against the state (Chapter 1 of the Special Part) and in the attributing of a special criminal significance to crimes against the state and public property (Chapter 2 of the Special Part). In the system of sanctions, the significance of custodial punishment was retained (including the Stalinist GULAG-system, although in a lesser from) as was forced labour û reformatory work without imprisonment (§ 26 of the Criminal Code), to which the Supreme Soviet of the USSR decree of 12 June 1970 of added suspended conviction together with compulsory work (§ 23-1 of the Criminal Code).

Legally and politically, the Estonian SSR Criminal Code reflected the democratisation of Soviet society during the so-called "Khrushchov thaw". Soviet authors claimed that this was "literally the first code in the history of the Estonian people" because the Criminal Code enacted in 1935 was a translation of the code of tsarist Russia.*4 There is no doubt that the utmost was made of any leeway granted to the Union republics and, from a legal and cultural perspective, the Estonian SSR Criminal Code was one of the best among the republics. Still, we are speaking of a relatively narrow leeway from the limitations prescribed by Moscow. For this reason, the Estonian SSR Criminal Code of 1961 has to be considered a variation of Soviet criminal law of which the Russian FRSR Criminal Code was the standard.

Gorbachev’s perestroika did not extend to change any criminal law principles. As the draft "Fundamentals for the criminal law legislation of the USSR and the republics" contained nothing new compared to current Soviet criminal law, the Baltic republics set out to independently elaborate on the bases of a new democratic criminal law. In several seminars, e.g. in Tartu on 2-3 March 1989 and in Riga on 29-30 March 1990, general issues of criminal law reform were discussed. Concurrently, appropriate committees began to draft the codes.

In the spring of 1990, a committee of the Supreme Soviet of the Republic of Estonia, led by Professor Ilmar Rebane, was formed to create a new criminal code for Estonia. Although the committee was able to draft a complete bill and continue improving it, by the spring of 1991 it was obvious that the principles of the bill did not attain the level of the new European criminal law. Work continued on two parallel bills. I. Rebane continued polishing his bill and, on the initiative of the Ministry of Justice, proposals for amendments to the current Code were solicited on the understanding that in a few years an absolutely new criminal code bill would be drafted.

Parliament adopted the amended variation of the existing Criminal Code on 7 May 1992 and it entered into force on 1 June of the same year. The Code altered the treatment of crime in the General Principles part, relatively significantly amended the system of sanctions (compulsory labour punishments were repealed and the daily rate system was established for fines) and repealed set elements of crime characteristic to the Soviet totalitarian state (in the chapter on crimes against the state, in the special part of Chapter 2 dealing with the heightened criminal law protection of state and social property, and others).*5

The criminal law reform of 1992 essentially achieved the same as what was politically and constitutionally achieved by the declaration of independence of the Estonian state on 21 August 1991: it was the departure from the Soviet state and society and the eradication of the institutions characteristic to a totalitarian state, from the effective law.

At the present time, Estonian societal and legal development is at the point where different branches of law have grown disproportionately. While the new system of private law is generally in place, development of public law, and particularly branches of criminal law, is lagging behind. Elaboration of the corresponding codes is the most important aim of Estonian legal development during the next years. A draft of the new General Principles of Penalties Code, for example, is to be completed before the end of 1996.

Notes:

1 The Estonians’ fight for freedom against Scandinavian, German and Russian conquerors ended with the defeat of Estonians in 1227 and Christianisation of the country mainly by members of German monastic orders and clergy.
2 F. G. Bunge. Einleitung in die liv-, est- und curländische Rechtsgeschichte. Reval, 1849, pp. 80, 84.
3 For further details, see J. Sootak. Õiguslik hinnang kohtuvälistele repressioonidele ja alusetutele süüdimõistmistele Eestis. - Eesti Akadeemiline Õigusteaduse Selts 1993. - 1995. a. A Yearbook. Tartu 1996, pp. 170-189.
4 G. Martin. Eesti NSV koodeksite üldpõhimõtetest. - Eesti NSV kriminaalkoodeksist ja Eesti NSV kriminaalprotsessi koodeksist. Tallinn 1961, pp.3-5.
5 For a survey of Estonian criminal law reform in German, see: J. Sootak. Stand und Tendenzen der Strafrechtsreform in Estland. - Von totalitärem zu rechtsstaatlichem Strafrecht. Kriminalpolitische Re- formtendenzen im Strafrecht osteuropäischer Länder. Freiburg, 1992, pp. 75-85.






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