Transition in the Field of Criminal Law and the Right to Defence:
A View From Estonia
Dr Lauri Mälksoo
1. Introduction
What are the implications of the transition of criminal law system to the exercize of the right
to defence? This question should prove quite relevant in the setting of countries and regional
cooperation organizations exchanging ideas on human rights and criminal law such as e.g. in
the framework of EU-China Human Rights Network.
Penal law is mostly one of the most conservative areas of law where there is less space for
intellectually exciting experiments. States, naturally keen to preserve their sovereignty, are not
inclined to change their norms and practices regarding crime and punishment that easily. It
seems, however, that small countries are more open to fundamental changes in legislation.
Often moving in the rearwaters of some of their more powerful and influential neighbour
states, small countries adopt more easily norms and values that have proven more innovative
or correspond better to the ‘progressive Zeitgeist’. Smaller countries are like yachts that can
more easily change their direction when the global weather changes. Big countries are like
massive tankers and the change of their course of movement is inevitably not that easy.
Estonia, with the size of the territory comparable to that of the Netherlands but a population of
1,4 Million only, has recently been such a laboratory of political, economic and social
transition. Needless too say, transition is also the keyword that characterizes the law,
including penal law and the law of criminal procedure. One of the de facto Soviet republics
(although illegally occupied in 1940 and as thus not de iure recognized as part of the USSR by
the US and other Western countries1), it had Soviet legal – including criminal law – system
until the restoration of independence in 1991. A period of transition2 followed during which
 University of Tartu
1
See for evidence and discussion in Lauri Mälksoo, Illegal Annexation and State Continuity: the Case of the
Incorporation of the Baltic States by the USSR. A Study of the Tension between Normativity and Power in
International Law, Leiden, Boston: Martinus Nijhoff, 2003.
2
See Jaan Sootak, Stand und Tendenzen der Strafrechtsreform in Estland, in: A. Eser, G. Kaiser, E. Weigend
(eds.) Von totalitärem zu rechtsstaatlichem Strafrecht, Freiburg, 1993, pp 75-85. See also J. Sootak,
1
the old Soviet-era Penal Code remained in force – however, with major changes effectuated in
1992 until later, on 6 June 2001, a totally new Penal Code3 was adopted by the parliament.
Furthermore, in 2003, the new Code of Criminal Procedure entered into force.
2. The Nature of Transition in Penal Law and Criminal Procedure in
Estonia
In order to understand the place and peculiarities of the right to defence in a given penal
system, we need to first characterize the respective systems. In a somewhat simplified fashion,
this transition that Estonia has recently made through can be characterized as the switch from
Soviet penal law to a penal law of modern Western type, particularly influenced by German
dogmatics and tradition of criminal law.4 The philosphical and moral foundations of the two
systems are sufficiently different. The Soviet dogmatics of criminal law was state-centric and
emphasized the anti-collective nature of any criminal offence (crimes were distinguished from
each other according to the level of their ‘dangerousness to the society’.) According to the
state-centric approach to criminal offence, the accused or convicted person had attacked not
so much another person or a value protected by the law, but the state, the society, the
collective. Since almost all property was exclusively collectively owned, any crime against
property such as theft was also exclusively directed against the state and society at large.
Accordingly, the defendant was at the outset in a somewhat unequal position when compared
with the state’s penal system, especially the powerful prosecutor’s office. The collective was
more important than the individual, and the concept of human rights as a guarantor for the
individual was not given such a weight as in the West. Nobody hardly emphasized the need to
guarantee human rights of the defendant since one who had already something to do with the
police (militia) and prosecutorial office, was a priory suspicious and was almost supposed to
be morally prevented from relying at high standards of defence. Criminal courts employed
inquisitory system and tended to side with the prosecutor’s office – both were organs of the
state - during criminal procedure and the trial. Among punishments, imprisonment was
Landesbericht Estnische Republik, in: A. Eser, B. Huber (eds.) Strafrechtsentwicklung in Europa,
Landesberichte 1989/1992 über Gesetzgebung, Rechtsprechung und Literatur, Freiburg 1993, pp 411-424.
3
For reception by the scholarly world, see e.g. C. Schmidt, Estland: Neues Strafgesetzbuch, WGO – MfOR
2001, p. 166.
4
See Jaen Praedel, La réforme du droit pénal estonien dans le contexte des réformes pénales survenues en
europe et spécialement en Europe et spécialement en Europe de l’Est, in: 8 Juridica International (Law Review
University of Tartu) 2003, pp 47-54. See also Priit Pikamäe, Jaan Sootak, La réforme du droit peénal estonien :
la voie vers l’indépendence, in : Revue pénitentiaire et de droit pénal, 1999, p. 193ff.
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employed very widely; there was much less space left for alternative punishments than in the
Western democracies.
Moreover, the Soviet criminal justice system was openly politicized. In important and/or
sensitive criminal cases, the directions to the prosecutor’s office and the judges were often
given through a “hot line” by party officials. From the point of view of individual, the result
was often, especially in the era of Stalinist repressions, unjustice and rstriction of rights at
almost kafkaish dimensions. Josef K., the tragic hero of Kafka’s novel “The Trial”, never
learned the reasons for his arrest and conviction. The cases of the misuse of defendants’ rights
and generally the criminal justice system in repressing individuals with a different point of
view were notorious. Beside the failure of Soviet socialism as a economic system, one of the
reasons why the Soviet system fell apart was because people became fed up with systematic
violations of their human rights by the state.
Thus, human rights and dignity were at the top of the Baltic transition agenda. People
rediscovered that they have fundamental rights that have been denied to them for decades. A
massive liberalization in all fields of social activity – including the law – followed. In the field
of penal law and criminal procedure, the state distanced itself from the system where defence
and prosecutorial office were unequal due to the fact that the bench sided with the
prosecutorial office. Estonia employs since 2003 adversarial system of criminal procedure.
3. Problems of Transition and the Right to Defence
Most cases from Estonia at the European Court of Human Rights have been related to the
exercize of criminal justice, and are, one way or another, related to the exercize and limits of
the right of defendants to defence. In fact, cases that have either received the attention of the
ECHR and the Estonian society – such as Tammer v. Republic of Estonia - or have been
solved in Strasbourg in favour of the convicted person – e.g. Veeber v. Republic of Estonia -,
are in themselves successful examples of the exercize of the right to defence.
In general, the following issues and problems have emerged:
1) The affordability of the right to defence seems to be a perennial issue but it receives
additional complicating dimensions in societies where the economic shock of
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transition has caused or emphasized poverty and disparities. If in a criminal case the
accused person is without necessary means to defend him/herself with the help of a
lawyer, the state guarantees him or her defence from the means of the state. However,
this state-sponsored defence in criminal proceedings is, to put it mildly, not the most
lucrative business for the attorneys. Therefore, the motivation and/or experience of the
attorneys exercizing state-sponsored defence remains somewhat limited. Modestly
motivated young attorneys doing their complusory service for the poor defendant do
not necessarily put the maximum effort into their cause. Again, in the case of Estonia
there exists the ECHR as the final guarantor, checking whether the proper right to
defence was afforded. However, the problem – and paradox - is that the very step of
filing a complaint at the ECHR presupposes the existence of a qualified defence
lawyer.
2) The effects of media reporting and public perception at the right to defence. Most
countries in transition have experienced the difficulty of exercizing the right to
defence in cases of profound attention by the media and the society. True, the balance
of guaranteeing the rights of the accused and the right to the freedom of information –
ultimately, public’s right to be informed – have often been complicated to balance.
One thinks of the well-known Sunday Times case at the ECHR – although this case
involved a civil litigation and not criminal proceedings. But it is especially interesting
to observe how in societies in transition media and public perception tend to exhibit a
setback to liberalization.5 Especially in cases of banktrupcies of financial institutions,
media has sometimes “lynched” the convicted persons already before the criminal
proceedings have started. As the case of Russian tycoons demonstrates, the exercize of
the right to defence is especially complicated in cases where part of the media and
public (saying this, I am well aware that media does not often represent “the public”
but financial interests) puts tremendous pressure on the penal system expecting certain
outcomes. In societies of transition, certain segments of population regard human
rights guarantees such as the proper right to defence as “foreign imposed values”. For
instance, in most Eastern European countries, opinion polls still suggest that the
majority of the population would still support the reestablishment of death penalty –
notwithstanding the fact that those countries have ratified the additional protocol of
the ECHR prohibiting death penalty in the early 1990s. Often populist “law and order”
5
See e.g. Norman Aas, Massenmedien und die Strafrestaussetzung zur Bewährung: Empirische Untersuchung
der massenmedialen Darstellung von der bedingt-vorfristigen Entlassung in Estland, in: 8 Juridica International
(Law Review University of Tartu) 2003, pp 89-99.
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movements play with opinions such as “why would the state spend more money on
convicted persons – or, for that matter, the right to defence – than for pensioners.”
Now, the overly negative and unbalanced influence of media does not render the
accused person’s right to defence uneffective. However, in reality it complicates the
exercize of the right to defence considerably since the court nay be influenced by the
public’s demand for harsh punishment and not the excellent legal reasoning of the
defence. It is therefore important to control whether the right of the defendant to
defence has been respected, and if necessary, to restrict the “lynching” effect of a
certain type of media at the proceedings. The right to information and freedom of
expression, essential for the funcioning of a democratic society, may therefore not yet
be ignored but carefully balanced with the right to fair trial.
3) The education of lawyers, including judges and defence attorneys. The transition of
penal law and criminal procedure in Estonia emphasized the gaps in legal culture and
perception. The right to defence cannot be properly exercized if the lawyers have not
been educated about all possible guarantors for the defendant. The knowledge gap had
especially negative influence in the case of crimes defined by international law and
mechanisms provided by international legal instruments. It took time until Estonian
attorneys discovered the opportunities and complexities involved in the text of the
EConvHR and the practice of the ECouHR. In cases involving mass crimes
(deportations and liquidations) committed during the first decade of the Soviet
occupation, the defendants were often unable to come up with successful defence
strategies – and this in situation where even the apellate courts were unable to properly
distinguish between crimes against humanity and genocide.6 The result was that in the
early 1990s, several individuals were convicted of the crime of genocide whereas a
successful defence would have been able to easily deconstruct the prosecutor’s case
for genocide.7 In essence, those cases demonstrated once again the crucial importance
of legal education in times of transition. International human rights law can only be
effectively used by the defence if the legal education provides indepth knowledge
about internastional standards and requirements.
6
Legal clarity was introduced only with the judgment in the Paulov case, submitted by the Supreme Court of
Estonia in 2000. See Lauri Mälksoo, Soviet Genocide? Communist Mass Deportations in the Baltic States and
International Law, 14 Leiden Journal of International Law 2001, pp 757-787.
7
See further for the elements of the crime of genocide in international law: William Schabas, Genocide in
International Law, Cambridge University Press, 2000.
5
4. Conclusion
It has been widely recognized that Estonia has managed the challenges of transition of penal
law and criminal procedure quite successfully. However, as the present brief presentation
demonstrated, the right to defence faces additional challenges in a time of transition. It is
therefore important to observe that in the time of economic and political transition, the human
rights guarantees of the defendants would not be neglected in the face of other, sometimes
‘competing’ interest.
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