Juristica International

The concept of crime has become a central issue of criminal dogmatics in the developing criminal law systems of Estonia and, indeed, all of Eastern Europe. Leaving aside the many individual issues, two essential points of criminal law from both legal theory and practical reform aspects must be focused on: the substantive definition of crime, and the delimitation of crimes and administrative offences.

I

To a great extent, criminal law currently in force in Estonia is the legacy of Russian and Soviet criminal laws and views the substantive definition of crime as the central issue in the concept of crime. According to the opinion prevalent among Estonian legal scholars and practitioners, this relates to defining a criminal act by its danger to society and mainly harks back to Soviet law. Still, neither the substantive definition of crime nor societal dangerousness are singularly characteristic of only Soviet criminal law. Therefore, in each particular case it has to be specified what exactly is meant by the substantive definition of crime and what role is played by the concept of crime through its societal dangerousness: whether it is aimed at influencing legislative drafting only or the interpretation of law and court practice as well.

Attempts by legal scholars to define crime not just as a violation of law but as an act causing actual damage go back to the Age of Enlightenment. The need for such treatment increased with the shaping of the concept of crime in classic German legal dogmatics. In today’s legal dogmatics, the three stage concept of crime is widespread: the presence of the elements of crime, unlawfulness of the act, and guilt. While these stages can be viewed as formal law, their social, psychological, cultural or socio-ethical essence can nevertheless not be denied. *1 This is wherefrom the problem of the formal and substantive definitions arises, and the crux of the problem does not lie so much in considering one concept of crime from both its formal and substantive aspects but in the existence of two concepts of crime, to a lesser or greater extent opposed to each other, and their functions in criminal legislation and dogmatics.

An important role in defining crime through its societal dangerousness is played by Franz von Liszt who holds that crime can substantively be explained by two characteristics. First, an act is liable to criminal punishment only if the restitutional function of private law (specific performance of an obligation and compensation of damage) is, in the eyes of the state, insufficient for redress. Second, criminal law steps in when condemnation must apply not only to the act but also to the societally dangerous offender guilty of the act. Indeed, the objective of criminal law is to fight such societal dangerousness. *2 At the same time F.v. Liszt emphasises that the essence of unlawfulness of a crime does not depend on any one person’s opinion, it is meta-legal and exists objectively; legislation does not create it, only addresses it. Where formal and substantive unlawfulness do not overlap, the formal aspect is to be taken as the basis – a judge is bound by the law and amending effective legislation is beyond his or her competence. *3

According to this treatment, the principles of nullum crimen sine lege and nullum crimen sine periculo sociali are not really in conflict since they belong to different levels of the concept of crime and their scopes of implementation do not necessarily overlap.

The treatment of crime and punishment in the 1921 draft Italian Criminal Code (progetto Ferri) has the same point of departure. Pursuant to § 11 of that Code, every act for which a sanction is prescribed is a crime. The degree of liability for a crime, however, depends on the dangerousness of the criminal (subsection 20 (1)) determined within the limits prescribed by law, according to the gravity of a particular criminal offence and other specific circumstances, motive, and the personality of the criminal (subsection 20 (2)). Sentencing was, in large part, the discretion of the judge. While the above-mentioned section required that the penalty should be within the limits prescribed by law, subsection 75 (2), for example, permitted penalties exceeding the maximum sanction by up to one-third if several factors of greater dangerousness were present. *4

II

While Ferri’s draft code retained the principle of nullum crimen nulla poena sine lege, Soviet Russian criminal law chose a far more radical path. The Russian FSR criminal codes of 1922 and 1926 contain several provisions which not only emphasise the societal dangerousness of a crime as a constituent characteristic of the concept of crime but also exhibit abandonment of the nullum crimen nulla poena sine lege principle. Pursuant to § 6 of the Criminal Code of 1926, any act or omission is societally dangerous if it is directed against the Soviet order or is harmful to the legal system established by the power of the workers and peasants during the period of transition to communist order. An additional note to the section specifies that an act is not deemed criminal if it formally meets the criteria of some section of the Special Part of the Code but is not of a societally dangerous nature because of its obvious insignificance and lack of harmful consequences. Pursuant to § 7 of the Code, social protection measures could be applied to persons who had committed societally dangerous acts or were dangerous due to either their connections with the criminal environment or their past activities. Section 7 of the Code specifies that amendments to criminal legislation, changes in the socio-political situation, and not declaring a person societally dangerous during an investigation or court procedure are bases for exemption from criminal liability.

A complete abandonment of the principle of nullum crimen nulla poena sine lege is evident in § 16 of the Russian FSR Criminal Code of 1926 which permits the use of analogy. Pursuant to this provision, if some societally dangerous act is not directly regulated in the Code, the bases and limits of liability for such an act are determined in accordance to those sections in which the closest category of crimes are provided for. Although writings claimed that societal dangerousness in the concept of crime was tied to culpability and punishableness of an act, making it compatible with the use of analogy is rather complicated if not impossible. *5

The Soviet Union’s criminal law reform of 1958–1961 made criminal law, to a certain extent, more democratic and restored the principle of nullum crimen nulla poena sine lege. For example, § 3 of the Estonian SSR Criminal Code of the includes among the bases for criminal liability, the requirement that the act must be specified in the criminal legislation. Also, pursuant to subsection 7 (1), one of the characteristics of the concept of crime is that the elements of the crime must be specified in the Criminal Code. Thus, “due to certain circumstances, socialist criminal law had to abandon the institution of analogy and, in the interests of socialist legality, provide for an exhaustive list of criminal acts”, which did not, however, mean that the substantive definition of crime through societal dangerousness was abandoned. *6 Societal dangerousness as a characteristic of crime also continued. Namely, subsection 7 (2) of the Estonian SSR Criminal Code stated that an act or omission which has the formal characteristics of some act provided for in that Code was not deemed a crime if it was not societally dangerous because of its insignificance. According to subsection 49 (1), a person could be exempted from criminal liability if he or she has ceased to be societally dangerous or if the offence committed by him or her was no longer societally dangerous because of a changed situation. Subsection (2) of the same section stated that on the basis of a court decision, a person who could not be regarded as societally dangerous because of good conduct and conscientious work ethic could be released from serving his or her sentence. In Soviet criminal legislation there were numerous other provisions which permitted exemption from criminal liability to persons who had committed offences with low societal dangerousness and application of an administrative penalty instead of a criminal penalty and/or referring the case to a comrades’ court, and other such exemptions (e.g. subsections 10 (3), 49 (1), §§ 50–51, subsection 51 (1), § 61).

Understandably, societal dangerousness as an element of the substantive concept of crime is thoroughly discussed in Soviet criminal law dogmatics. Overcoming the immanent contradiction between societal dangerousness as a characteristic of the concept of crime and nullum crimen nulla poena sine lege proved impossible here too. For example, on the one hand it is recognised that for the criminal prosecution of a person it is not necessary to show the social dangerousness of his or her offence separately. At the same time it cannot be denied that determination of societal dangerousness, and hence, the exemption of a person from penalty, may be in the competence of not only a court but also of a pre-trial investigatory body. *7

III

The Russian Federation Criminal Code of 1995 retained both the substantive concept of crime and its definition through societal dangerousness. Pursuant to subsection 14 (1), a crime is “a culpably committed and societally dangerous act which is prohibited by this Code under threat of sanction”. An important difference from the previous Russian FSR Criminal Code is that the said section also contains the definition of societal dangerousness. Specifically, subsection 14 (2) states that a crime is not an act or omission “which formally has the characteristics of some act provided for in this Code but is not societally dangerous because of its insignificance, that is, it does not harm or create threat of harm to a person, society or the state.” A similar definition of societal dangerousness is also given in subsection 2 (2), though without using the words societal dangerousness. Subsection 3 (2) prohibits the use of analogy expressis verbis. Subsection 5 (1) distinguishes between the societal dangerousness of an act and of its consequences, just like forms of guilt are construed by way of the act and its consequences (§§ 25–27). Section 15 of the Code divides criminal offences into four categories according to character and degree of societal dangerousness (minor, medium, grave and very grave offences), whereas exemption from criminal responsibility (Division IV of the General Part), takes active repentance (§ 76) and reconciliation with the victim, into account for the categories (i.e. degrees of gravity) of crime. Thus, exemption of a person from criminal liability in connection with a changed situation (§ 78) is possible when it is ascertained “that due to the changed situation the person or the offence committed by him or her has ceased to be societally dangerous”.

While retaining the substantive definition of crime through societal dangerousness, Russian criminal law has somewhat changed the dogmatic construct of the concept of crime. Earlier Soviet criminal law defined crime in the following linked stages:

1) the list of protected benefits or items (subsection 1 (1) of the Criminal Code of the Russian FSR);

2) societal dangerousness and nullum crimen sine lege (subsection 1 (2));

3) the bases for criminal liability by reason of guilt and societal dangerousness (§ 3);

4) the definition of crime together with the definition of an insignificant offence which precludes societal dangerousness (§ 7); and

5) exemption from criminal liability in connection with cessation of societal dangerousness or with low societal dangerousness of the offence (e.g. § 50).

The current Russian Federation Criminal Code, however, uses the following linked stages:

1) the list of benefits (subsection 2 (1));

2) the substantive definition of crime without the words societal dangerousness (subsection 2 (2));

3) the principle of lawfulness (nullum crimen sine lege) and prohibition of analogy (§ 3);

4) the principle of guilt and societal dangerousness (§ 5);

5) the bases for criminal liability or the requirement of presence of the elements of crime (§ 8);

6) the definition of crime together with the definition of an insignificant offence which precludes societal dangerousness (§ 14); and

7) exemption from criminal liability in connection with cessation of societal dangerousness (§ 78), while the Code is silent about societal dangerousness concerning other cases of exemption from criminal liability (§§ 76 and 77).

Shifts in these outlines of the concept of crime are not those of principle but are nevertheless important. On the first level, i.e. legislator’s level, the concept of societal dangerousness is not used at all (§ 2). Other significant differences are that guilt is specified as a principle in itself (§ 5) and guilt and the basis of criminal liability (§ 8) have been separated. Although a comparison of § 5 and Chapter 5 (“Guilt”) of the General Part does not give reason to speak of a transition from a psychological to a regulative treatment of guilt, in my opinion, the wording of § 5 and the structure of the entire Chapter 1 of the General Part demonstrates a certain tendency, expressed in two essential instances:

1) the legislator proceeds from the substantive definition of crime when determining the criminality of an act;

2) upon the criminal prosecution of a person, his or her guilt in a societally dangerous offence and the presence of the elements of crime are considered separately.

IV

The substantive definition and the concept of societal dangerousness of a crime is topical in all East European countries in which criminal law reform is underway. In most cases the concept of societal dangerousness is willingly forsaken as a “relic from Stalinist criminal law” *8 and the concept of crime is treated “substantive-formally”, focusing mainly on significant unlawfulness. *9

Nevertheless, societal dangerousness as a characteristic of the concept of crime is retained in the draft Criminal Code of Poland (Art. 1 § 3, Art. 113 § 2), whereas in legal writings, societal dangerousness is viewed as an objective factor restricting the arbitrariness of the legislator. According to such treatment, the elements of crime become middlemen between the abstract concept of societal dangerousness and a specific offence. Also, the category of societal dangerousness is seen as an opportunity to solve the issue of petty crime. *10

An interesting solution is provided in the draft Criminal Code of the Republic of Latvia. The legal definition of the substantive concept of crime has been deleted from there too. However, subsection 6 (1) of the bill introduces the committal of an act, intentionally or negligently, as a characteristic of the concept of crime: “a crime is an act (activity or failure to act) committed wilfully or through negligence.” Subsection (2) of the same section states also that “an act or failure to act which has elements of a criminal act as specified in the Criminal Code of the Republic of Latvia but which is committed under circumstances excluding criminal liability, shall not be considered a criminal act or failure to act.” Such construction attempts to exclude the substantive definition of crime and, evidently, to tie the concept of crime to both substantive unlawfulness and culpability. At the same time, it must be noted that the concept of guilt remains defined as a psychological concept – in §§ 8–10, “the forms of guilt” are defined as “wilfully (intentionally) or through negligence”. From the circumstances exempting a person from criminal liability, necessary defence, harming a person while detaining, etc. occur in Chapter 3 of the General Part of the bill. The substantive definition of crime is contained in § 57 of the bill (“Exemption from Criminal Liability”) pursuant to which a person may be exempted from liability if his or her conduct “officially has the elements of an act provided in this Code, but which is not so dangerous that criminal punishment should be applied”. This provision is similar to § 42 of the Austrian Criminal Code which is contained in the Chapter on sentencing (Chapter 6. Exemption from Criminal Liability and Sentencing).

V

Naturally, the substantive definition of crime is topical also from the point of view of Estonian criminal law reform. The substantive treatment of the concept of crime characteristic of Soviet criminal law, above all, the defining of crime through the societal dangerousness of an act, carried over into the Estonian SSR Criminal Code of 1961. Pursuant to subsection 1 (2), the objective of criminal legislation was to determine “which societally dangerous acts are crimes”. Section 3 of the Code states that only a person who had committed “a societally dangerous act provided for in criminal legislation” was punishable under criminal law. From the aspect of the concept of crime, subsection 7 (1) of the Criminal Code of 1961 was of particular importance. It defined crime as “a societally dangerous act which is provided for in this Code and which attacks the social order of the Soviet Union and the Estonian SSR, their political and economic systems, socialist ownership, individual, political, work-related, proprietary or other rights and freedoms of the citizens, and other societally dangerous acts which attack the socialist legal order and is provided for in this Code”. The same section (subsection 7 (2)) of the Code stated that an act was not considered a crime if it “formally has the characteristics of an act provided for in this Code but is not societally dangerous due to its insignificance”. In this particular instance one was faced with an act which was not considered a crime at all; no criminal prosecution would be initiated against the person who committed it, and a case already initiated had to be abandoned. In Soviet legal dogmatics, specific constructs concerning the concept of crime developed on the bases of §§ 7 and 49 of the Criminal Code, and were divided into the following classes:

a) An act which has the characteristics of an act provided for in the Criminal Code (subsection 7 (2)) but is not societally dangerous due to its insignificance. In light of the concept of crime accepted in Europe, this would mean the presence of the elements of crime in the conduct of a person who, under Soviet law, is exempt from criminal liability (an investigator or a court will abandon the proceeding) because of the insignificance of the act. According to Soviet criminal law dogmatics, however, there are no elements of crime in the conduct of a person who committed such an act because the general basis for criminal liability is the presence of the elements of crime, and societal dangerousness is also effected through each of the elements of crime. Societal dangerousness is the criminal law characterisation of the elements of crime as a whole societal dangerousness is determined on the basis of the set of the elements. *11 On the principle of a contrario it may here be concluded that the lack of a societal dangerousness foundation results in the non-existence of the framework constructed thereon, i.e. the elements of crime.

b) An act which has the characteristics of a crime but has lost its societal dangerousness due to a changed situation or the person who committed it has ceased to be societally dangerous (subsection 49 (1)). Such a person would be exempted from criminal liability (e.g. the investigator would abandon the proceeding or the court would convict the person but not sentence them). An act ceases to be societally dangerous on the basis of objective circumstances, external to the offender.

c) A criminal act which is committed by a person who has ceased to be societally dangerous due to his or her good conduct after the crime. The court would convict such a person and release him or her from serving the sentence (subsection 49 (2)).

d) A criminal act whose societal dangerousness is not great. Disciplinary measures may be applied to a minor who commits such an act (subsection 10 (3)).

It is not hard to notice that the concept of crime, the elements of crime, and the importance of societal dangerousness in this system form a specific construct peculiar to Soviet criminal law. It is therefore impossible to mechanically transfer this construct to other systems of understanding based on the outline of the concept of crime accepted in Europe (elements of crime, unlawfulness, and guilt). This was the logic underlying the Estonian criminal law reform of 7 May 1992 which deleted all provisions concerning societal dangerousness of a crime from the Criminal Code in force (among others, the former subsection 7 (2) was repealed and replaced by a substantively different formulation). On the other hand, it is clear that from a practical aspect, the issue of the substantive definition of crime is reduced to the gravity of crimes, and above all, to the issue of petty crimes The criminal law reform of 7 May 1992 also had to adopt a stance on this. Although abandoning the use of the concept of societal dangerousness of crime, the new criminal legislation did not abandon the substantive definition of crime. Specifically, the effective Criminal Code retained some of the provisions which previously permitted an offender exemption from criminal liability or punishment – subsections 10 (2) and (3) (minors) and § 50 (bail). The text of the Code no longer uses the phrases insignificance of the crime, societal dangerousness, etc. Instead, special preventive prognosis (an offender may be influenced without application of criminal punishment) is addressed, but the connection with the substantive definition of crime still exists. The amended version of the Criminal Code (subsection 7 (2)) establishes three degrees of gravity of crime and, for example, a person who has committed a crime of the second or third degree may be granted bail only if he or she obtains a favourable special preventive prognosis.

VI

It is obvious that the issue of the substantive definition of crime must be resolved in the course of Estonian criminal law reform, if only seen from the petty crime aspect. Legislative practices of various countries use different solutions which must be considered as possible models in the course of Estonian criminal law reform.

The prevailing opinion in the criminal law writings of Western countries is that societal dangerousness of an act as an ambiguous and open-ended characteristic of the concept of crime is not justified. “The exclusion of cases irrelevant to criminal law” (H.J. Hirsch) must be based on a more precise determination or interpretation of the characteristics of the elements of crime in substantive law; procedurally, the “principle of opportunity” is wide spread and will be discussed below.

F. Herzog considers societal dangerousness as a characteristic of the concept of crime to be a myth of modern criminal law. Societal dangerousness is a risk where the subject is attributed certain characteristics and a prognosis is given of the potential social consequences of the act. In this way the law, by predicting the danger to society, already actually criminates pre-offence conduct. By presupposing harm to society, the state robs the offender of subjectivity, declaring him or her a puppet of bad conditions and changes execution of punishment into a measure merely for the protection of society. Thus, societal dangerousness of a crime is not an ontological but a socio-historical category, and if it is regarded as a material characteristic of the concept of crime, and hence, of all criminal law, then criminal law is placed at the mercy of changing social circumstances. *12

In German criminal law, the substantive definition of crime has retreated to prior to the Criminal Code, to answer the question why a particular act must be declared a crime in the Criminal Code. It is a yardstick at the disposal of the legislator, to help him or her decide what and how to punish. The content of the criteria arise from the substantive definition of criminal law as a branch of law fulfilling the task of protecting the legal benefits of ultima ratio. *13 The German Criminal Code does not contain a legal definition of crime. Only §1 establishes the principle of nullum crimen sine lege – crimes are these (and only these) acts which are established as crimes in criminal legislation. We have here a formal definition of crime. The issue of the substantive definition of crime has been removed from the German Criminal Code.

Still, it is quite obvious that not all committed acts are equal in gravity, and that there are those which are of small importance indeed (petty or minor crimes, Germ. Bagatelldelikten). Also other circumstances may be present which considerably reduce the punishableness of an offence (theft within a family, and the like). To avoid the full procedure and sentencing of such acts, two methods are implemented by German law.

First, the prosecutor has the right to decide whether to bring charges or not, given the principle of appropriateness (Germ. Opportunität). Pursuant to §§ 153 and 153a of the German Criminal Procedure Code, a prosecutor may use his or her discretion in the case of offences for which a custodial sentence of up to one year or a pecuniary fine is prescribed and when a) the guilt of the person is small, b) the public interest does not demand that the offender be punished. The prosecutor may also impose certain obligations on the offender (Germ. Auflagen und Weisungen), e.g. compensation requirement, community work, etc. Such obligations are analogous or completely coincide with those measures prescribed by the system of sanctions of substantive law. It is thus an area where substantive and procedural laws overlap. It should be mentioned that German law uses the same method, i.e. creation of institutions common to substantive and procedural laws, for the solution of other problems as well (see, e.g. Kronzeugeregelung, 9 June 1989). *14

The procedural law solution based on the principle of appropriateness is evidently one of the most wide spread, although this option has its disadvantages too. It is claimed that this solution has begun to fulfil considerably wider tasks than those which were intended by the legislator in 1974 when § 153a was introduced in the Criminal Code. *15

Another method for the decriminalisation of petty crime is the use of the request offence (Germ. Antragsdelikt) – an offender will be held liable only if so requested by the victim or other person. In German legislation, such clauses are contained in the appropriate Chapters of the Special Part of the Criminal Code (e.g. § 247 – theft from a family member or § 248a – theft of a thing of small value). Substantive and procedural laws are interwoven in this method as well.

Today, Antragsdelikt is used in Estonia, too (known as private prosecution), but purely procedurally (the list of private prosecution cases is contained in § 95 of the Criminal Procedure Code).

The advantage of the German approach is that criminal law does not take on the immanently foreign task of designating certain acts criminal while, contradictorily, claim that the crime is not a crime.

Austrian criminal law, however, has included the substantive definition of crime in criminal legislation. Specifically, § 42 of the Criminal Code of Austria “Lack of punishableness of an act” states that an act is not punishable if the sanction prescribed for it is a fine or a custodial sentence of not more than one year and if a) the guilt of a person is small, b) the act resulted in only insignificant consequences, c) neither general nor special preventive aspects require punishment of the offender. The right to decide the applicability of § 42 to a particular minor offence is vested in the court, and the court has the right to discontinue the proceeding at any stage. Thus, the non-punishableness of an act also precludes the conviction of the person. This provision is contained in the Chapter of the Code dealing with sentencing (Chapter 4 of the General Part, “Sentencing”) and does not directly relate to the part of the Code dealing with crime. On the other hand, non-punishment of the offender is still related to the assessment accorded to the act, insofar as the degree of unlawfulness inherent in the act (Unwert- or Unrechtsgehalt) does not attain punishability (Strafwürdigkeit) and so directly constitutes within itself a substantive definition of crime. Writings emphasise that punishment should be used only when it is inevitable in the public interest, since punishment “affects the status of an offender in society and his or her usefulness (Leistungsfähigkeit) to society.” *16

As discussed above, criminal legislation effective in Estonia defines petty crime primarily on the basis of two characteristics: the gravity of the crime and special prevention. De lege ferenda must consider whether the issue of petty crime, modelled on § 153a of the StPO of Germany and § 42 of the StGB of Austria, should also be connected to general preventive considerations. Regardless, the current attitude of both jurists and the populace toward general prevention is notably positive, if not exaggerated.

VII

The other basic issue connected with the substantive definition of crime and the concept of petty crime is that of distinguishing between a crime and an administrative offence. In doctrinal Soviet criminal law there were two main views: a) a crime differs from an administrative offence only by its degree of societal dangerousness although in essence, both are societally dangerous acts; b) societal dangerousness is a key characteristic only of a crime, whereas an administrative offence is characterised on a qualitatively different level by societal harmfulness.

Leaving aside the position characteristic to Soviet criminal law which defines crime by societal dangerousness, then here, too, the basic question to resolve the problem under consideration can be seen, that question being does a crime differ from other violations of law by some qualitative characteristics or are various violations of law distinguishable only on a quantitative scale?

In the first half of this century James Goldschmidt and Erik Wolf, two German legal scholars, developed a theory according to which criminal law protects those basic values that are independent of the state, the so-called given, pre-existing legal benefits, whereas administrative liability arises from the activities of the state aimed at ensuring public order, welfare, sanitation, etc. Thus, administrative penalties are applied not to violations of objectively existing legal benefits but in the course of exercise of governance of the state. Proceeding from this, a crime is harm to a legal benefit, while an administrative offence is a violation of the order established by the state, or, ethically neutral disobedience to executive power. *17

The above theory makes it possible to generally delimit the two branches of law but does not provide a reliable criterion for distinguishing between the two types of liability. The criminal code also protects the activities of the executive power of the state (e.g. crimes against governance procedure), whereas the administrative penalties code also contains the elements of offences harmful to the interests of the individual. 18

Given the above, the presence or absence of a legal benefit does not serve to distinguish criminal law from administrative penalties law. In such cases the drawing of the line proceeds mainly from criminal policy viewpoints, and is to be drawn by the legislator in each individual case, depending on the character of the legal benefit, the gravity of potential or actual harm thereto, and the extent and type of the guilt of the person. *19

Drawing a line between criminal and administrative penalties law is far from being a purely theoretical issue. Its practical aspect manifests itself in two ways.

First is the place of the given branches of penalties law in the legal system. If there is no fundamental difference between criminal and administrative offences, then it is not absolutely necessary to have two codes. This, in turn, depends on what is considered as the specific function of criminal law when compared to other protective branches of law. If we categorically assume that a criminal penalty must always be more severe than others (e.g. administrative penalty), then having two codes is inevitable. Still, due to of the wide use of and great fluctuations in fines in penalties practice there is no reason to consider that premise as determinative. In fact, it is no longer possible to distinguish between the two branches of law by the size of fines, as admitted in the recommendations by the XIV Congress of International Criminal Law. These recommendations only consider “the severity of sanctions under administrative penalties law, particularly that of fines, not to considerably exceed the possible severity of fines under criminal law” as necessary. *20

The defamatory nature of a criminal procedure and conviction with respect to an offender, and society’s assessment of it, is a different matter. It is reasonable that here the recognisable specificity of criminal law is expressed and this should provide sufficient reason for the existence of two independent penalties laws within the legal system. The use of various abridged procedures and diversion methods in both substantive and formal criminal law have, of course, blurred this characteristic. Still, even from a general preventive aspect, the existence of a societally accepted ethical dividing line between criminal and other types of liability, particularly when the former is effected through the court, cannot be denied. The existence of two codes (or two types of individual Acts) supports this view and upholds the tradition established in most countries. On the one hand, the existence of two codes emphasises the subsidiary nature of criminal law and contributes to the ultima ratio treatment of criminal law. On the other hand, having one common code helps to restrict the ardency of administrative penalties law drafting by preferring punitive sanctions to non-punitive administrative measures. In support of one code is also the fact that in both cases, sanctions are punitive (Germ. vergeltende) and the premise for their application is the principle of personal guilt and other circumstances defining the concept of crime (including circumstances which preclude unlawfulness and guilt, and mitigating circumstances).^*21 Therefore the differences between the general principles parts of the two codes cannot be too great, and if the sets of elements of crime are drawn together into one code, having a single general principles part is, if not inevitable, at least recommended.

Another set of issues is specific to Estonia and is largely derived from the legacy of former Soviet criminal law that being administrative precedent as a criminalising characteristic in certain sets of elements of crime in the Criminal Code. Exemption of a person from criminal liability by instituting administrative proceedings against that person (subsection 49 (1) of the Estonian SSR Criminal Code) was discussed above as an institution specific to Soviet criminal law. This could be applied to a person who had committed an act which had the characteristics of a crime but the societal dangerousness of which was not great (pursuant to subsection 49-1 (2), in the case of crimes for which the maximum sanction prescribed by law was not more than one year of imprisonment). For prosecution under administrative law, it was necessary to show that the particular person could be rehabilitated by administrative sanction, without application of a criminal penalty.

Today this provision is repealed but the Criminal Code in effect still retains administrative precedent as a transition from administrative offence to crime, primarily in the sets of elements of financial crime (Chapter 7 of the Special Part). In contrast to § 49-1 of the former Criminal Code, transition from one branch of penalties law to another is not connected with special preventive prognosis, but rather, the legislator has proceeded from general preventive considerations. A record of an earlier administrative penalty would demonstrate the inadequacy of the administrative penalty for rehabilitating the person and therefore the legislator has presumed insufficiency of an administrative penalty and allowed for the necessity of a special preventive measure by application of a criminal penalty.

The institution under discussion can be considered in various ways. From a practical aspect, both of the above transitions, in either direction, are feasible. Theoretically, however, in a situation where the two branches of penalties law, i.e. criminal and administrative penalties laws, exist side by side, each with its own code, such transitions are not correct. Bearing in mind, however, the fact that the role of the fine is on the increase in the application of penalties, it is clear that the difference between the two branches of penalties law is essentially reduced to the amount of fine and the guarantee of the offenders’ rights in procedure. The first difference can be resolved through different sets of elements of crime and the sanctions prescribed therefor. The other difference is an issue of procedural law and beyond the scope of substantive law.

In Estonia, the current view is that in creating the new penalties law, it is not reasonable to maintain the two different codes. Having one code would restore the traditions of the Republic of Estonia Criminal Code of 1929 which also contained the sets of elements of both criminal and administrative offences (all offences were divided into grave crimes, crimes and transgressions, per § 3 of the Criminal Code of 1929). Also, we would follow the model of one of the newest criminal codes in Europe, the Code penal of France, passed in 1992 and entered into force in 1994, which classifies criminal offences as crimes, offences and transgressions.

Thus, the new Penalties Code of Estonia would include all sets of elements of crime, dividing them into crimes and transgressions, and the transgressions would probably have further subdivisions. The procedure for application of various penalties, depending on the category of offence, would be established in the Procedure Code. Such a solution would allow for the definition of all offences formally (on the principle of nullum delictum sine lege) and transitions from one category to another could be resolved by way of, recidivism or the institutions dealing with groups of offences.