As is known, for the execution of state power, including criminal policy, the use of two principle types of methods are possible: those of coercion and those of consensus (agreement). Pursuant to the prevailing understanding, methods of coercion are undoubtedly considered primary in criminal care. Moreover, during a long period of time after the separation of powers, it was wished that criminal care would be a field excluding any possibility of agreement or allowing it only in exceptional circumstances. Thus, criminal care was considered the most classic sphere of public coercion. The coercion requirement in criminal care as a whole is foremost expressed in the principle of legality of criminal procedure.2 According to the prevailing understanding, this principle gives rise to the following requirements:
a) if the characteristics of a crime are present, the prosecutor or the police3 must proceed to investigate the case; and
b) if after the preliminary assessment of the facts, there are sufficient grounds to believe that a crime has been committed, the prosecutor or the police must bring a charge against the offender and the prosecutor must try to get the offender convicted and sentenced by the court.
T. Weigend for whom the traumatic origins of the principle of legality in the context of German criminal procedure lies in the fact that both of the above-mentioned requirements are considered absolutely inseparable, has stated the following: “The saying that every delict must be followed by punishment accords with an archaic, authoritarian system of criminal law, where only the most serious attacks against social order are declared punishable, the most essential argument for punishment is revenge and the mechanism for realising these aims of criminal law is on a sufficiently good level. It is unknown whether these conditions have ever been fulfilled, but in any case, they had not been present at the time the principle of legality was introduced into German national criminal procedure in 1877, not to mention nowadays.”4
For the reasons described by T. Weigend, but also evidently under various other circumstances,5 different ideas that could be interpreted as introducing exceptions to the principle of legality began to take root in criminal care. In the past twenty years, these exceptions to the principle of legality have been introduced in German criminal care under the device of “acceleration” (Beschleunigung) and a well-intended German desire for systematisation has tried to incorporate them into the principle opposed to the principle of legality, the principle of opportunism.
The question of how to explain logically the simultaneous effect of two absolutely opposing principles in criminal procedure has not got a unique and explicit answer in German legal literature.
C. Roxin asserts that the effect of the principle of legality “has been blemished by so many exceptions that, in fact, in the sphere of petty crimes but also those of medium severity, the principle of opportunism is functioning.”6 Thus, C. Roxin confesses that the criminal procedural “playground” is practically divided.7
Almost 20 years ago already, H. Zipf, one of the most famous criminal law politicians, had a somewhat different opinion. He observed that “the opportunism position (with a certain inherent consideration of expediency) would in a certain way restrain immanently only the intensity of the effect of the principle of legality rather than the whole sphere.”8 According to H. Zipf, the expediency-based grounds for terminating a criminal proceeding (for example, little public interest in a proceeding because of its insignificance) had to be listed, according to the above concept, among the circumstances excluding criminal procedure.9 H. Zipf explains the necessity to retain the principle of legality throughout criminal procedure by the fact that the principle does not live its own life but executes a specific public regulatory function, that is, a function guaranteeing the fulfillment of criminal law norms and the execution of sanctions. Somewhat incomprehensible is H. Zipf's allegation that the fulfillment of this public function presupposes a carefully metered approach toward the violators of norms and that the right measure for different groups of offences differs. In addition, H. Zipf states that the principle of legality does not require a proceeding for all crimes, but requires the restriction of criminal proceedings by objective public criteria, and foremost, the exclusion of arbitrary action.10
Only ten years ago, K. Peters had almost agreed with H. Zipf's view concerning the global nature of the sphere of the principle of legality by affirming that “the principle of opportunism means [on the basis of the principle of legality] not proceeding with crimes that in principle need to be proceeded with”.11 Such a defence of the principle of legality can be hardly persuasive and regardless of K. Peters' authority, it has never been the case in Germany. Practical needs have simply ignored such authority.
The probability of the global nature of the principle of legality in criminal procedure becomes, in fact, questionable when the principle is defined. The principle requires that crimes the characteristics of which have manifested be dealt with. In connection with this, J. Bohnert has stated that, on the basis of the principle of legality, equal treatment (unfortunately in the present case in a “non-human rights” sense by which with the commencement of a criminal proceeding a threat of punishment exists for everybody) of all criminals could only be guaranteed if the percentage of undetected crimes were minimal. Otherwise, if only one out of a hundred crimes is detected, as J. Bohnert continued, only the principle of opportunism can guarantee the equal application of law.12 Indeed, what right is there to “strictly follow the line” in the case of a relatively petty crime while a number of serious crimes are not detected at all? That question can be answered and, naturally, has been answered in various ways, but hardly could any of these answers be correct in principle, and hardly could it be possible logically and correctly to substantiate the global validity of the principle of legality in criminal care.
It can only be assumed that because of the above-mentioned reasons, the prevailing opinion in present German legal literature (including those of the above-cited T. Weigend and C. Roxin) is that in some fields of the present German criminal procedure the principle of legality has been excluded. At the same time, it seems that while seeking to find a place for the principle of opportunism in the system of principles, most of the authors are somewhat ashamed that the above principle is not an outright ordinary principle of criminal procedure for which a fixed place in the system could be found. Further, it still seems that there is a wish to interpret the principle of opportunism as a certain complex concept incorporating everything deviating from the principle of legality. Such a desire can presumably be explained by the fact that although the direct impetus for the abandonment of the criminal proceeding is declaratively always expediency, the motives and, thus, the deeper reasons for the application of the principle of opportunism can be of the kind which from the aspects of legal policy should not be discussed so openly.
C. Roxin divides the manifestations of the principle of opportunism (cases where a criminal proceeding is terminated despite the suspicion of a crime) in present German criminal procedure into four groups:13
1) insignificance of a crime and lack of public interest in proceeding with it;
2) the possibility to satisfy the public interest in proceeding with a criminal case [and for influencing the offender] by other measures;
3) proceeding with a criminal case is in conflict with the national interest; and
4) the victim of the criminal case is entitled by law to initiate the criminal proceeding himself or herself.
In the first group, the so-called absolutely insignificant criminal cases can be distinguished where pursuant to law, the guilt is minor and primarily because of that, there is a lack of public interest in proceeding with the case (section 153 of the Criminal Procedure Code of Germany, hereafter the “StPO”) or there is reason to believe that after the trial the court may exempt the offender from punishment. The possibilities for such exemptions are prescribed, for example, by sections 46, 60 and 157 of the Criminal Code of Germany (hereafter the “StGB”). The first group also comprises the so-called relatively insignificant criminal cases (subsection 154 I (1) and section 154a of the StPO) the proceeding with which can be desisted if the presumable inflictable penalty (or any other criminal law measure) is not of any complementary relevance in comparison either with the penalty already imposed or with the presumable penalty to be imposed for another offence in the near future. A third set of criminal cases in the first group is cases connected with a foreign country, that is, offences committed by foreigners and extradition cases (subsection 153c I (3) and section 154b of the StPO) where the public interest in proceeding with them is low. Finally, the first group includes drug trafficking cases where a person has obtained a drug exclusively for himself or herself and there is no public interest in proceeding with the case.
The “other measures” of the second group (section 153a of the StPO) include the imposition of either a fiscal burden or some other obligation on a person such as community work for juvenile offenders during holidays.
The third group comprises firstly, certain offences against the state (section 153d of the StPO) the proceeding with which could be detrimental to the national interest. Secondly, the third group comprises cases which stimulate active repentance (section 153e I of the StPO) on the occasion of offences against the state. The group also includes cases which enable the victim of a crime to be protected against blackmailing (section 154c of the StPO). This possibility can be used, for example, by a person who has been blackmailed in order to gain a certain sum of money and, if failing to obey, was threatened with the initiation of a criminal proceeding against him or her, or the conviction of rape. Fourthly, this group contains criminal cases the resolution of which depends on previous judgements of a civil or administrative court. In these cases, the prosecutor may suspend the criminal proceeding for a period of time and on its expiry, terminate the proceeding.
According to C. Roxin, it is arguable whether the fourth group (or the sphere of the principle of opportunism in general) could also incorporate the termination of a criminal proceeding (or a release from punishment) involving prosecution witnesses. The present German law allows the release of prosecution witnesses from penalty in drug offence cases and the termination of the criminal proceeding in cases of terrorism provided that the Chief Public Prosecutor has requested it and the Supreme Court has given its consent.
The fourth group comprises private prosecution cases that undoubtedly constitute an exception to the principle of authority of criminal procedure but the principle of opportunism in these criminal cases on the other hand, also lies in the fact that the prosecutor can use his or her discretion to undertake the proceeding of a case and in so doing, change it into a public prosecution.14
This is the reality of the classic effect of the principle of opportunism in present-day Germany. However, with regard to the prospects for expediency considerations, opinions differ greatly. The main trend described by T. Weigend remains difficult to resist. First of all, T. Weigend points out that the German criminal care concept, that holds that the inevitable necessity to punish stems from the principle of legality, is moving toward the constitutional concept of the expedient use of public coercion. At the same time, T. Weigend holds that perhaps, in a way, it is right to “inject” opportunism into criminal care only by criminal law.15 Such criminal law based opportunism (hereafter “criminal law based opportunism”) would in T. Weigend's opinion avoid the double-faced situation in criminal care where one law orders a punishment while the other excludes it. Criminal law based opportunism would also make the legislators elaborate the criteria for decriminalisation in the criminal law; the criteria that, in fact, are missing for the application of criminal procedural opportunism. Thus, the public cannot understand and accept the termination of a proceeding on considerations of expediency, for example, in the case of an economic offence where the damage caused by the offence amounts to millions of kroons, or the termination of a criminal proceeding and imposition of an obligation to pay a huge compensation sum in the case of medical negligence.16 Naturally, the application of criminal law based opportunism should be exclusively within the authority of the court, but with this, a very serious negative aspect of criminal law based opportunism is revealed, in that, it is absolutely uneconomical to commit every case to court if the possibility to use the principle of opportunism is clearly predictable. For these reasons, T. Weigend continues to support the development of “classic” criminal procedural opportunism. In his opinion, the prosecutor could also apply the principle if, in order to safeguard the equal treatment of all suspects before the law,
a) the exact conditions for the termination of the proceeding were fixed in law;
b) judicial review of the prosecutor's decision to terminate the proceeding was guaranteed (for example, by a request mechanism for victims); and
c) the establishment of the material facts of a crime was guaranteed and the imposition of certain obligations on the accused after the termination of the proceeding takes place exclusively with the accused's real consent.17
In T. Weigend's opinion, all manifestations of the so-called new opportunism (especially those concerning the protection of the interests of prosecution witnesses) should be positively guided to the “playground” of criminal law based opportunism. In other words, T. Weigend thinks that in such serious crimes as those committed by prosecution witnesses, the court should be the only institution capable to order an exemption from penalty. This is exactly the current situation with prosecution witnesses in drug offence cases.18
The prevalent opinion in German legal literature is that the sphere of the principle of opportunism cannot include the eminent phenomenon of the present practice of German criminal procedure which facilitates the criminal care load and originates from Anglo-American law nick-named as “arrangement” (in German die Absprache, hereafter “Absprache”).19 The main problem however, seems to be that Germans do not want to face the truth and confess openly the existence of Absprache. However, considering that the direct impetus behind Absprache, from the perspective of persons responsible for the conduct of a proceeding, is undoubtedly expediency, it would be honest to confess that Absprache is also a manifestation of the principle of opportunism.
No one denies the presence of Absprache in German criminal procedure any more but the attitude of scholars is extremely divergent toward this descendant of plea bargaining the essence of which is, to put it briefly, the agreement of the prosecutor and defence counsel to facilitate the application of criminal law and simplify the conduct of a criminal proceeding.
According to T. Weigend, the existence of Absprache in German legal practice was brought out already (or only just, according to the author) by K. F. Schumann in his monograph entitled “Bargaining with Justice” which has been cited repeatedly since.20 To an observer, it may seem that a certain apogee of Absprache problems in Germany was in 1990 when the topic of the reports and discussions in the criminal section of the 58th annual meeting of lawyers was “Absprache in Criminal Procedure? Basis, Object and Limits”. The prevailing opinion of (or rather attitude toward) Absprache has been expressed by H. Wagner and T. Rönnau in the following: “On the basis of the legal literature, it can be stated prima facie that those who criticise (mostly scholars) the informal proceeding of a criminal case are surely in the minority. Their arguments and allegations concerning the infringements of procedural and constitutional law and even possible culpability of the participants in Absprache for their activities have evidently had no influence on the professional actors of criminal procedure, and the critics continue to emphasise that foremost the chronic overload of the criminal care system is an inevitable cause of the informal criminal procedure.”21 A concise commentary on this quotation would be a typical and known one: in certain cases, and especially those concerning work load, practice neither wants to hear what theory whispers in the ear nor even what it openly shouts.
Five years later, an observer could think that everything concerning Absprache has been agreed on in Germany. Thus, R. Tscherwinka convincedly claims in the first sentences of his thesis (published in 1995) that “Absprache in criminal procedure is in conformity with the Criminal Procedure Code and the Constitution. Naturally there are also some exceptions, and the aim of the present thesis is to determine these cases precisely. However, it is absolutely groundless to claim that the practice of Absprache separates the reality of criminal procedure from law.” Somewhat later the same author has added to the above that “the sceptical attitude of Supreme Court practice toward Absprache shows an absolute lack of confidence in the subjects of a criminal proceeding participating in the process of Absprache, that is, in the intentions, responsibility and obedience to the law of defence counsels, prosecutors and judges.”22
Prior to considering more closely the reality of Absprache in German criminal procedure as described by R. Tscherwinka, it cannot be helped but to ask the following rhetorical question: is it generally even possible to consider adequately a real legal phenomenon which is not regulated by law, the practice of which the Supreme Court does not want to approve and which the corresponding participants do not want to expatiate on? Nevertheless, there is not a direct reason not to believe in what R. Tscherwinka writes because although on a theoretical level (a principled permissibility of Absprache in German criminal procedure; accordance of Absprache with the principles of German criminal procedure, etc.) there is some discrepancy concerning the problems of Absprache, in describing the reality of Absprache, his and other authors' opinions are relatively similar.
Approaching the problem extremely pragmatically, R. Tscherwinka first of all points out that Absprache corresponds with the interests of all the central subjects of a criminal proceeding.
For the court as well as for the prosecutor's office, Absprache very importantly reduces their (unendurably great) work load, expedites (which is far from being excusively in the interests of the court and prosecutor' office) the criminal proceeding, effectively legitimises court judgements23 and, finally, as R. Tscherwinka notes, evades the difficulties connected with tendering proof.24
According to R. Tscherwinka, the accused's interest in Absprache can foremost be explained by the fact that it enables him or her to resolve more quickly problems of fatal significance and to get a clear idea of his or her future, and thereby reduce tension. The accused is also attracted by Absprache because it helps to avoid or shorten an extremely stigmatising and lengthy court proceeding. Another attractive aspect of Absprache for the accused adds R. Tscherwinka is that in Germany, a defence counsel's fee per day of court session is DM 5 000 which is by far not the maximum, and only three per cent of full proceedings result in acquittal.
R. Tscherwinka's discussion about the interests of a defence counsel in Absprache is somewhat elusive and uncertain. Naturally, it is not easy to give up a daily fee of DM 5 000, but at the same time R. Tscherwinka seems to believe that the possibility to receive a contingency fee in the case of Absprache is considerably higher than in the case of a full-length proceeding.
As to the risks of Absprache, it has been claimed that Absprache may deteriorate the authority of the court, in that, a judge or prosecutor whom a defence counsel has once “persuaded” could hardly stand against further “persuasion”.25
The risks of Absprache for the accused can be summed up in the hopeful question of what if a full proceeding would have had a more positive outcome. Obviously, this question can be asked both in cases where the person has been groundlessly convicted and in cases where the accused has really committed a crime. The risk expressed by the above question also covers the case of a dishonest (or unprofessional) defense counsel who has persuaded the accused to choose Absprache regardless of his or her real prospects to be acquitted.
The main risk of Absprache for a defence counsel stems from the possibility that the accused may not follow the agreement. For example, an accused may not plead guilty which in turn may result in the judge's mistrust in the defence counsel.26
On the basis of the average opinion of different authors, R. Tscherwinka claims that Absprache is used in Germany in 20-30 per cent of all criminal proceedings (whereby in the case of economic offences, the percentage is said to be almost three times higher), in any stage of the proceeding and in resolving almost any of the essential problems of the proceeding.27 R. Tscherwinka stresses also that formerly Absprache was only a problem of the courts which dealt with the factual circumstances of a case, but currently it is becoming also the problem of courts which deal with legal questions (in Estonia, a court of cassation). At the same time, R. Tscherwinka points to the fact that the atmosphere in the court of cassation is much more favourable for Absprache because the parties have a certain idea of the factual side of the criminal case, and so can discuss the legal aspects of the case calmly and reach agreement.28
R. Tscherwinka has exposed interesting data concerning what the different participants have tried to gain by Absprache. For example, the accused has been endeavoured to confess his or her guilt either partially or fully; to compensate the loss caused by the offence; to assist in solving the crime; to accept the status of a prosecution witness (in essence, this means providing incriminating evidence against co-offenders); to relinquish a claim to interrogate certain witnesses, but also the claim to gather additional evidence(!)29; to waive prosecution; and to agree to cooperate with the police in the future.30 Further, the prosecutor and court have been aspired to expedite the proceeding; to show trust (!); to dismiss the proceeding with of other crimes; to promise that a relatively “thin” confession of guilt would be interpreted as a full confession; to promise that the defence counsel would be allowed to formulate the accused's statements(!); to apply a so-called punishment order procedure (Strafbefehlverfahren); to impose a milder punishment; and to promise to impose a certain type or range of punishment. The court has been aspired to “drop a hint” to the prosecutor that he or she could seek the termination of the criminal proceeding on considerations of expediency; to withdraw charges in certain episodes of crime; to confine a convict in a correctional institution of lower regimen; to confine a convict in a certain (and naturally more favourable) correctional institution (!); to promise that the legal assessment of the act would be grounded on the prevailing opinion or prevailing position of judicial practice;31 to impose a conditional sentence; to abandon the summoning of certain witnesses; to promise to not impose a more severe penalty than requested by the prosecutor (!); and to promise to appoint compulsorily the same defence counsel in other procedures (!). The prosecutor has been aspired to promise to the accused at trial or defence counsel to “meet” their wishes in other procedures (!).32
Having demonstrated in a quite indisputable manner, the reality and inevitability of Absprache in present German criminal procedure, R. Tscherwinka also considers it necessary to point out that the existence of Absprache is not based exclusively on pragmatic considerations, but that it is also one of the most expressive reflections of a consensus orientation characteristic to the development of the entire current German law. R. Tscherwinka mentions that although, for example, such a prominent legal philosopher as R. Alexy has in principle admitted the possibility of regarding the classic trial as a legal discourse, the majority of legal theoreticians and philosophers tend to deny such a possibility because of the authoritarian nature of classic judicial procedure.33
The following ideas in R. Tscherwinka's conclusion to his consideration of Absprache should be emphasised. First of all, he mentions that there is no sense in approaching Absprache abstractly and regarding it on that basis as either negative or positive. In relation to Absprache, every single case must be studied separately considering the variety of its forms, themes, content, results, etc.
From the procedural-theoretical aspect, R.Tscherwinka's assertion that Absprache is not an independent category of procedural activity but preparation for carrying out classic proceedings, deserves attention.34 Despite the fact that in R. Tscherwinka's opinion Absprache does not essentially violate any of the principles of criminal procedure, he is still in compliance with the herrschende Lehre and the position of the German Constitutional Court that the central form of Absprache can only be a confidential and at the same time non-binding prediction for the further course of the proceeding and that any binding agreement arrived at in the course of Absprache is in principle an infringement of subsection 136a (1) of the StPO.35
With regard to arrangement in present Estonian criminal care, the forms and elements of arrangement should be distinguished. Forms of arrangement come into question in procedural mechanisms regulated by the relatively integral institutions of criminal procedure law. The elements of arrangement are the separate provisions of the Estonian Criminal Procedure Code (hereafter, the “CrPC”) and the Criminal Code (hereafter, the “CrC”) which allow some scope of freedom of decision to the persons who are responsible for accomplishing a criminal proceeding.
A. Forms of Arrangement in Current Estonian Criminal Procedure36
There are two forms of arrangement in current Estonian criminal procedure. The first form of arrangement prescribed by subsection 5 (4) of the CrPC, has been in force since 1 January 1995. This provision offers in the case of third-degree crimes (minor crimes for which the CrC excludes the sanction of deprivation of liberty) and second-degree crimes committed by negligence (for which the sanction prescribed by law is up to eight years' imprisonment) a possibility to abandon the proceeding if “the victim does not want to participate in the proceeding of a criminal case because of reconciliation”.
The use of the word “possibility” above means that these cases are not pure private prosecution cases. Firstly, if “new circumstances of the crime come to light” the chief of the investigation department, the equivalent police officer (see subsection 106.1 (6) of the CrPC), the prosecutor or the court may institute or continue a criminal proceeding irrespective of the victim's wishes. The legislators have considered it unnecessary to provide an adequate or at least illustrative list of these new circumstances, but in practice such a new circumstance has foremost been connected with the fact that the victim's consent to reconciliation and abandonment of the criminal proceeding was not an expression of the real and free will of the victim. It would be logical to require the above officials who are acting against the victim's previously expressed will to substantiate the presence of the new circumstance or at least mention it directly and specifically.
Secondly, if the proceeding of a third-degree crime or second-degree crime committed by negligence has already begun, it will not be possible to terminate the criminal proceeding on the victim's request due to reconciliation if any of the participants in the proceeding37 object to it. The legislators have made no additional conditions for such objections and consequently the participants in the proceeding do not have to explain why, despite the victim's wish for reconciliation, they want to continue the criminal proceeding.
The first form of arrangement of Estonian criminal procedure described above has essentially extended the sphere of private prosecution as all criminal cases of third-degree crimes and second-degree crimes committed by negligence have become specific private prosecution cases. As a result, the following types of private prosecution in present Estonian criminal procedure can be distinguished:38
a) cases of request (or the so-called pure private prosecution cases), which are criminal cases in connection with the offences provided for in section 113, subsection 129 (1) and section 130 of the CrC. As a rule, they are instituted by a judge only at the victim's request, there is no pre-trial procedure and if the victim agrees to settle the case with the accused by reconciliation, the criminal case usually will be terminated;
b) exceptional cases of request, which are criminal cases in connection with the offences provided for in section 113, subsection 129 (1) and section 130 of the CrC if, in compliance with subsection 95 (2) of the CrPC, the prosecutor considers the crime committed extremely important to society. In these cases, the prosecutor will institute the criminal proceeding irrespective of the victim's request, the full pre-trial procedure and subsequent criminal proceeding will be conducted in the regular manner and mere reconciliation of the victim with the accused cannot be a ground for the termination of the criminal case;
c) “simple rape cases”, that is, criminal cases in connection with the offences provided for in subsection 115 (1) of the CrC. As a rule, these cases are instituted only at the victim's request by the examiner, investigator or prosecutor and mere reconciliation of the victim with the accused cannot be a ground for the termination of the criminal case;
d) exceptional “simple rape cases”, which are criminal cases in connection with the offences provided for in subsection 115 (1) of the CrC if, pursuant to subsection 95 (2) of the CrPC, the prosecutor considers the victim incapable of protecting his or her rights and legal interests because of his or her helpless condition, dependence on the accused or for some other reason. In these cases, the prosecutor will institute the criminal proceeding irrespective of the victim's request, the full pre-trial procedure and subsequent criminal proceeding will be conducted in the regular manner and mere reconciliation of the victim with the accused cannot be a ground for the termination of the criminal case;
e) qualified defamation cases, which are criminal cases in connection with the offences provided for in subsection 129 (2) of the CrC. These cases are instituted exclusively at the victim's request39 and mere reconciliation of the victim with the accused cannot be a ground for the termination of the criminal case;
f) authority cases,40 which are the cases in connection with third-degree crimes and second-degree crimes committed by negligence (as provided for in subsection 5 (4) of the CrPC) that can be left uninstituted (thus, allowing the institution of a case to be refused) if the victim does not want to participate in the criminal proceeding because of reconciliation. Taking into consideration the actual course of a criminal proceeding, authority cases can be divided in turn into the following subtypes:
i) simple authority cases, which are the cases where the victim uses his or her right to reconciliation and the criminal proceeding is not instituted;
ii) exceptional simple authority cases, which are the cases where the chief of the investigation department, the equivalent police officer, the prosecutor or the court has decided to institute the criminal proceeding because new circumstances of the crime have come to light;
iii) qualified authority cases, which are the cases where the criminal proceeding that is already instituted will be terminated because the victim does not want to participate in the criminal proceeding due to reconciliation and no other participant in the proceeding objects to it; and
iv) exceptional qualified authority cases, which include the cases where the chief of the investigation department, the equivalent police officer, the prosecutor or the court has decided to renew the criminal proceeding because new circumstances of the crime have come to light.
In conclusion, the sphere of private prosecution in present Estonian criminal procedure is too ample, unfoundedly variegated and rather incoherent. Although in the contemporary theory of criminal procedure there is an obvious tendency toward strengthening the victim's role,41 this tendency by no means includes the enhancement of the sphere of private prosecution, because a civilised state cannot abandon thoughtlessly one of its main duties, that is, protecting the public, and allow almost half of all crimes to be resolved by private prosecution. However, this is exactly the case with the present Estonian criminal procedure law. The fact that the state can at any time intervene in the sphere of private prosecution, “if new circumstances of the crime have come to light”, is no justification. Consequently, expectations that a victim would reconcile can hardly be an acceptable form of arrangement in contemporary criminal procedure.
The second and unquestionably the main form of arrangement in present Estonian criminal procedure is the summary procedure (hereafter “summary procedure”) prescribed by a self-contained chapter42 of the CrPC and valid since July of 1996. In the case of summary procedure, similarities to Anglo-American plea bargaining, pattegiomento of current Italian criminal procedure or the German Absprache can be discussed.
More or less, the same pro and contra arguments as in the German Absprache discussions were considered prior to the introduction of summary procedure into Estonian criminal procedure.
In any case, Estonian criminal law specialists did not have enough time and, possibly, enough knowledge to form a clear-cut prevailing opinion against summary procedure or, in other words, did not have enough possibilities to inhibit summary procedure scientifically. A rapid increase in the crime rate and an enormous overload of the first instance courts simply required that some practical steps be taken. Foremost on pragmatic grounds, Estonian scholars, practitioners and politicians came to an agreement that in present times, one could not nor should one appeal to the classic continental criminal procedure: “Hands off the criminal procedure law!”43
In this case, Estonian legislators could add (if necessary) that legitimisation of summary procedure was not only based on ephemeral political aspects, but future prospects were borne in mind as well; namely, legislators could justify their step by referring to future criminal procedure reform. In that light, the introduction of summary procedure can be seen as a certain legal experiment the results of which will be taken into consideration in the course of such reform. The legal regulation of summary procedure is outlined briefly below.
Pursuant to section 364 of the CrPC, summary procedure can be applied in the case of third-degree and second-degree crimes if:
1) the circumstances constituting the object of proof are clear;
2) the accused has fully confessed his or her guilt for the crime charged;
3) the accused, his or her defence counsel or if the offender is a minor, his or her legal representative, the victim, civil suitor and civil defendant do not object to the application of summary procedure;
4) summary procedure is applicable to any accused in a criminal case with several accused persons; and
5) it is not a private prosecution case.44
If the examiner or investigator of a case either (a) on his or her own initiative or (b) following the prosecutor's instructions believes that it would be appropriate to apply summary procedure, he or she will carry out the following procedure:
1) he or she will explain to the accused and if the offender is a minor, to his or her legal representative the possibility for use of summary procedure, and the accused’s rights in that procedure;
2) he or she will prepare a protocol of consent for the accused, his or her defense counsel45 and if the offender is a minor, for his or her legal representative to apply summary procedure;
3) he or she will determine the opinion of the victim, civil suitor and civil defendant about the possibility and conditions for applying summary procedure; and
4) he or she will prepare a protocol of consent (or refusal to consent) for the victim, civil suitor and civil defendant to apply summary procedure.46
If the “prelude” to summary procedure has been positive and the above protocols have been prepared, the examiner or investigator will draft a request for summary procedure and file it with the prosecutor.
Within 5 days after receiving the request for summary procedure, the prosecutor must verify the presence of the conditions (apropos also whether the person has been charged with all crimes!) for applying summary procedure and after that, he or she will be entitled to take one of the following procedural steps:
1) prepare an order for the application of summary procedure and the commencement of negotiations;
2) prepare an order for returning the criminal case to be investigated in the regular manner;
3) prepare an order for returning the criminal case together with instructions to remove the obstacles interfering with the application of summary procedure; or
4) prepare an order for termination of the criminal proceeding as provided for by section 5 of the CrPC.
After an order for the application of summary procedure and commencement of negotiations is prepared, the prosecutor will, within 3 days, draft a preliminary summary procedure agreement and commence negotiations with the accused and his or her defence counsel or if the offender is a minor, with his or her legal representative. In the course of negotiations, the accused will be reminded of his or her rights again and the accused and his or her defence counsel or if the offender is a minor, his or her legal representative will be presented with the file and allowed to become familiar therewith. The objects of the substantive negotiations are foremost the essence of the charge, the qualification of the crime, the amount and the nature of the loss caused by the crime, and thereafter, the type and range of penalty. Negotiations may result either in entering into a fixed summary procedure agreement (section 372 of the CrPC) or, in the event of failing to reach an agreement, a prosecutor's order to return the criminal case for continuation of the pre-trial procedure in the regular manner.
Within 5 days after the conclusion of a summary procedure agreement, the prosecutor is obligated to prepare an indictment and submit it together with the file of the criminal case to the court.
Within 5 days after receiving the indictment, the judge of the court may:
1) bring the accused to trial and commence a hearing within 10 days;
2) return the criminal case for the pre-trial proceeding in the regular manner if the grounds for summary procedure are absent;
3) return the criminal case to the prosecutor for entering into a new agreement if the court disagrees with the qualification of the crime committed, scope of the civil suit or type and range of penalty presented in the summary procedure agreement;
4) terminate the proceeding of the criminal case pursuant to section 197 of the CrPC; or
5) suspend the proceeding of the case because of a serious illness of the accused which hinders the hearing of the case.
A hearing in summary procedure cases is conducted by a single judge, and the accused at trial, his or her defence counsel or if the offender is a minor, his or her legal representative, and the prosecutor are strictly obligated to participate in the hearing.
The preliminary part of the hearing (opening of the hearing, check of attendance and authorities, resolving of withdrawals and other requests) is similar to an ordinary judicial proceeding. The substantive part of the hearing of a summary procedure case will begin when the prosecutor reads out the indictment. After this, as prescribed by law, the judge will question the accused at trial whether he or she has understood the content of the indictment, whether he or she pleads guilty and whether he or she has adhered to the summary procedure agreement. Next, as prescribed by law, the judge will propose that the accused at trial or, if the offender is a minor, his or her legal representative explain how the summary procedure agreement was entered into, in order to ascertain whether the agreement expresses the true will of the accused at trial. Thereafter, the defence counsel and the prosecutor will be asked to give their opinion on the summary procedure agreement and whether they have adhered to the agreement. Finally, before leaving for the discussion room, the judge will ask whether the parties to the summary procedure hearing have any new requests.
In summary procedure cases, the court may issue:
1) an order returning the criminal case to the prosecutor for entering into a new summary procedure agreement if the judge disagrees with the qualification of the crime committed, scope of the civil suit or type and range of penalty presented in the summary procedure agreement;
2) an order rejecting summary procedure on the basis prescribed by subsection 263 (1) or clause 387 (1) 2) of the CrPC and, consequently, the criminal case will be returned to the prosecutor for the continuation of the criminal proceeding in the regular manner;
3) an order terminating the criminal proceeding; or
4) a judgement concerning the conviction and sentence of the accused at trial in accordance with the summary procedure agreement.
The present situation in the administration of justice in Estonia is approaching the European average in the sense that an increasing number of accused persons (or accused persons at trial) must wait too long for the trial of their criminal case even if the case has already been committed to trial as a result of regular procedure. In order to expedite the resolution of these criminal cases, that is, resolution within a reasonable time, legislators have prescribed the possibility to apply summary procedure, provided that the grounds for the application of summary procedure are present. Thus, according to section 390 of the CrPC (provided that the grounds for the application of summary procedure are present), the prosecutor may take steps to apply summary procedure both before the accused is brought to trial or during trial. The content of the procedure to apply summary procedure in cases that have reached trial in the regular manner is, until the moment of trial, similar to the procedure for pre-trial proceedings.
In addition to the authority to allow the application of summary procedure, a judge dealing with a criminal case is authorised, within 5 days after receiving the summary procedure agreement, to decide:
1) to refuse the prosecutor's request for the application of summary procedure if the grounds for summary procedure are absent; or
2) to return the criminal case to the prosecutor for entering into a new summary procedure agreement if the judge disagrees with the qualification of the crime committed, scope of the civil suit or type and range of penalty presented in the summary procedure agreement.
According to clause 390 (4) 1) of the CrPC, a person in summary procedure must be brought to trial again even if he or she has already been brought to trial in the course of regular procedure. At the same time, the legislators have not provided whether the bringing to trial in the course of summary procedure presupposes the cancellation of an earlier decision to bring the person to trial, as well as the cancellation of the proceeding and its result conducted in the course of regular procedure, and if it does, how such cancellation occurs.47 The question of whether it is possible to apply summary procedure in cases where the accused at trial being tried in the course of regular procedure has denied his or her guilt is also open.
Pursuant to subsection 390 (5) of the CrPC, the summary procedure hearing of cases that have reached trial as the result of regular procedure must be conducted in the same way as ordinary summary procedure hearings with the strange exception that if in the course of regular procedure a person has not been brought to trial, then at the beginning of the summary procedure hearing, in addition to the summary procedure agreement, an indictment summary must be read out. At the same time, the legal meaning of an indictment summary in this case is not clear.
In accordance with clause 390 (5) 2) of the CrPC, a judge may on the grounds provided for in subsection 263 (1) or section 387 of the CrPC reject the application for summary procedure and continue the proceeding in the regular manner. However, there is no certainty whether it is possible to continue the proceeding and, it is more likely that such rejection would mean a new start of the judicial proceeding in the regular manner.
The accused at trial, his or her defence counsel or if the offender is a minor, his or her legal representative and the prosecutor may file an appeal from a summary procedure court decision only in connection with an infringement of the procedural norms regulating summary procedure. This seems to be an infelicitous regulation because in this way, the legislators have explicitly excluded other important infringements of criminal procedure law, such as conducting a summary procedure hearing without the participation of an interpreter, as grounds for appeal. As well, the authority of the appellate court to review an objection filed against a summary procedure court decision is of questionable value, in that, the appellate court may either leave the decision of the first instance court unreversed and reject the appeal or, rescind the decision and return the criminal case to be proceeded with in the regular manner. It is possible that such alternatives for the decision of the appellate court might guarantee the observance of procedural norms in summary procedure. The decision of the appellate court in summary procedure cases is the only decision of that court which cannot be directly48 appealed by cassation. With regard to the other court decisions possible in summary procedure, only the order terminating the proceeding of the criminal case can be appealed (by a so-called special appeal).
Within the first six months of the introduction of summary procedure, the procedure was used in almost 80 criminal cases. This was much less than expected and so, it became necessary to determine the reasons for this low level of use. Considering the fact that only the prosecutor can directly initiate summary procedure, the author tried to determine prosecutors' opinions of summary procedure de lege lata and de lege ferenda by way of a questionnaire delivered to almost half of the prosecutors of Estonia in March of 1997.
Most of the prosecutors thought that the active use of a new and good form of procedure would take some time. However, many of them confessed that they were not interested in the new form of procedure because it helped to decrease the work load of the courts rather than save prosecutors' time. Also, a certain psychological aspect of summary procedure was pointed out; it is not pleasant to enter into an agreement with a criminal. Apparently, this basic attitude influenced prosecutors in answering the other questions as well. Thus, almost 80 per cent of prosecutors stated very briefly and without any explanation that they were satisfied with the present legal regulation of summary procedure. At the same time, almost 10 per cent of them were of the opinion that any arrangement of this kind should, in principle, not be permitted.
During the second half of 1997, summary procedure was applied a little more often and thus, during the first year of being in force, summary procedure was used in approximately 300 criminal cases. Nevertheless, this figure is still too small and apparently one of the reasons therefor is the inadequate legal regulation of summary procedure. It can be concluded that the present regulation of summary procedure does not satisfy equally the interests of participants in the summary procedure agreement and, therefore, it does not reflect adequately the consensus model of criminal procedure. As a result, the working group of the bill of the new Estonian CrPC has considered the proposed amendments outlined below to the regulation of summary procedure.
Firstly, summary procedure could be applied earlier in the process, that is, before the suspect has fully pleaded guilty.49 Such an approach would make both the suspect and the person responsible for the conduct of the pre-trial procedure more interested in the application of summary procedure.
Secondly, it seems practical that summary procedure be applied, as a rule, only in the case of second-degree crimes and that the main procedural form for third-degree crimes and offences which are included in the CrC be the “punishment order procedure”, the analogue of which in German criminal procedure is das Strafbefehlverfahren. However, if a person who is convicted on the basis of “punishment order procedure” appeals the court judgement, the application of summary procedure could come into question.
The working group unanimously held that the consent of the victim, civil suitor and civil defendant should not be a prerequisite for the application of summary procedure. This does not mean however, that the victim cannot express his or her opinion on the loss caused to him or her by the crime and on the type and range of punishment.
It is still arguable whether the restrictions on the sanctions provided by law should also apply in the case of summary procedure.
The procedures in which the legislators have granted discretion to the person conducting the procedure may be considered the elements of arrangement in Estonian criminal procedure. One would think that technically legislators have used the word “may” to grant discretion. Unfortunately, an analysis indicates that legislators have used the word even in cases when, in fact, a discretion cannot or should not be exercised at all.
For example, subsection 23 (2.1) of the CrPC provides that the criminal cases regulated by section 196.1 of the CrC50 may be tried with a three-judge court, whereby pursuant to section 204.1 of the CrPC, the decision as to the composition of the court is within the discretion of the Chief Justice of the Tallinn City Court. Therefore, it depends on the decision of the Chief Justice whether the case will be tried with a bench of three professional judges or of one professional and two lay judges. In this case, it is questionable whether it could be considered a trial of a criminal case by “a tribunal established by law” as prescribed by paragraph 1 of Article 6 of the European Convention on Human Rights.
In the case of a lengthy trial, section 25 of the CrPC offers the possibility to summon a “reserve” lay judge to participate in the trial (on the order of the court) to act, in the case of necessity, as a substitute for the appointed trial lay judge. Obviously, it would be practical if the legislators also prescribed the possibility of summoning a “reserve” judge to appear at the trial.
Another subsection inconsistent with paragraph 1 of Article 6 of the European Convention on Human Rights is subsection 29 (2) of the CrPC on the basis of considerations of expediency and for the fact that it provides that either a Chief Justice of a circuit court or the Chief Justice of the Supreme Court can exceptionally order a case to be tried by the court in the jurisdiction where the results of the crime manifested or most of the accused persons or witnesses reside.
The ability of an investigator or court pursuant to subsection 39 (2) of the CrPC to reject the request of an accused to abandon his or her defence counsel (on the basis of a well-grounded order) even in cases that do not require the compulsory participation of a defence counsel (subsection 38 (1) of the CrPC) is also extremely questionable and somewhat incomprehensible.
Understandably, a judge who is entitled to order the limitation of constitutional rights in criminal proceedings has a certain scope of freedom of decision.51 However, the legislators have left undefined, for example, the grounds for the substitution of detention for bail. Thus, it can be claimed that the judge who decides whether to issue the above order or not can base his or her decision on considerations of expediency.
Section 79.1 of the CrPC which provides that a victim or witness or their close associates may be declared anonymous for their protection, offers the person responsible for the conduct of the proceeding enough, perhaps even too much, scope of freedom for decisions based on expediency.52
In appellate proceedings, the elements of arrangement are found foremost in the institute of withdrawal of an appeal. Sections 16 and 24 of the Appellate and Cassation Criminal Court Procedure Code provide that an appellant may withdraw an appeal which, as a rule,53 results in an obligation to terminate the appellate proceeding unless other appeals in the case have been filed.
The ideas of expediency can also be revealed in section 25 of the Appellate and Cassation Criminal Court Procedure Code. This section provides that the appellate court may try a criminal case without the participation of the accused at trial if the latter is not held in custody, he or she has received the summons to appear in court and a copy of the appeal, he or she has informed the court of his or her non-attendance at the trial, and the court holds that the entire establishment of facts and protection of rights and legal interests of the accused at trial are possible without his or her participation.54 The question of how the court can predict this possibility remains unanswered.
One cannot but notice a certain element of expediency also in subsection 39 (4) of the Appellate and Cassation Criminal Court Procedure Code which provides that in addition to the list contained in subsection 39 (3) of the Code, the Supreme Court can consider any violation of criminal procedure substantive (and therefore a ground for the reversal of the lower court decision by way of cassation) if it finds that such violation has hindered or may hinder the thorough, full and objective examination of the criminal case, as well as its legal and reasoned adjudgement. In violations regarded as those that “may hinder ...”, the court has enough freedom to make a decision based on expediency.
In conclusion, a peculiar provision (subsection 48 (4)) of the Appellate and Cassation Criminal Court Procedure Code should be mentioned. This provision excludes an “arrangement” between the judges of a Supreme Court panel. Consequently, leave for a cassation appeal of a criminal case will be granted even in cases when only one judge of the civil panel sitting in the Appeal Selection Committee approves the application for leave, whereas the whole criminal panel has considered the appeal ungrounded.55
With regard to the elements of arrangement in the present Estonian criminal law, it should be mentioned that unfortunately the legislators have annulled subsection 7 (2) of the CrC which enabled, when considering expediency, an act to be not regarded as a crime if it only formally had the characteristics of a crime but was insignificant.
Presumably, the legislators have also borne in mind the considerations of expediency (and humanity) in formulating subsections 10 (3) and (4) of the CrC which allow the court, in the case of a juvenile offender, to substitute criminal punishment for educational measures. Similarly, the legislators have vested the court with the ability to impose medical measures on a person who at the moment of committing an act with the characteristics of a crime or after the commission of the crime was found to be insane.
An example of an infelicitous use of the word “may” is found in subsection 22 (3) of the CrC which provides that if a commutation has been granted, a death penalty may be commuted to life imprisonment. Practice hitherto has been to interpret the word “may” in the above provision as “shall” and most likely that interpretation expresses the legislators’ will.
Rather questionable is the expediency of the legislators’ use of the word “may” in subsections 33 (2)-(6) of the CrC. This section prescribes the special confiscation of objects connected with the commission of a crime and, therefore, it is difficult to understand why a means of transport constructed for poaching and smuggling “may” (but not “shall”!) be confiscated (subsection 33 (5) of the CrC).
Subsection 37 (2) of the CrC which states that in addition to the list of circumstances provided for the mitigation of criminal liability (subsection 37 (1) of the CrC), the court may (has the discretion to) consider other mitigating circumstances in sentencing is consistent with consensus-based criminal care.
A pure example of expediency considerations is found in section 39 of the CrC which allows a court to impose a sentence that is less than the prescribed minimum if circumstances which reduce the severity of the crime are present. A court can also exercise its discretion in merging penalties (sections 40 and 41 of the CrC).
Chapter 5 of the CrC, regulating exemption from punishment, offers a court many possibilities for consensus-based activity, of which, the two outlined below should be mentioned. Firstly, section 47 of the CrC which prescribes the conditional discharge of a convict is absolutely based on considerations of expediency or as the text of subsection 47 (1) provides, the court may apply a conditional discharge to a convict if it considers that “serving a term of imprisonment is not reasonable”. In granting a conditional discharge, the court can exercise its discretion by determining a specific period of probation (from one to three years) and by imposing additional conditions on the person discharged from punishment.
Secondly, subsection 50.1 (1) of the CrC provides that a court may at the prosecutor's request discharge a convict from punishment if “material evidence given by him or her has led to the establishment of the elements of the crime or the conviction of the criminal” and enforcement of the conviction. This is an Estonian variation of the institute of prosecution witness. Understandably, it is arguable whether such a consensus-based judgement could be permissible in connection with any type of crime. The expression “evidence given by” is also incomprehensible and diverges from other provisions regulating the tendering of proof. Extremely questionable is the connection made between the discharge and the conviction and its enforcement.
The following sections of the Special Part, in addition to the provisions of Chapter 5 in the General Part of the CrC, offer the possibility of discharge from punishment: subsections 148.3 (2); 148.6 (3); 164 (3); 164.1 (3); 165 (3); 207 (4); 207.2 (2); 210.1 (3) and 210.2 (3). The enumerated provisions offer a discharge to persons who have committed a crime, on the basis of their “prosecution witness-like” behaviour. Although supporting in every respect consensus-based solutions in criminal care, it is still rather difficult to explain logically why some of the bases for the discharge from punishment are inserted in the Special Part of the CrC and do not have a place in the General Part of the CrC and, accordingly, in the general theory of criminal law.
In conclusion, the inevitable necessity for the forms and elements of arrangement in the future criminal care of Estonia has been understood and accepted both in the present-day theory and practice, whereby the introduction of summary procedure has essentially assisted in creating a positive atmosphere for extending the sphere of the principle of opportunism.
At the same time, there is still some ambiguity in the future forms and elements of arrangement, and especially in their role in the two different spheres of criminal care as a whole. The solution to the problem presupposes both a thorough analysis of the existing forms and elements of arrangement and comparative research.
Finally, an explicitly regulated sphere of arrangement should presumably strengthen the effect of the principle of legality in the fields of criminal care where arrangement is excluded.
38 See infra note 44.