The principle of opportunity 's also known as the principle of expedience 's is outlined in Article 202 Section 1 of the Code of Criminal Procedure. According to this law the prosecuting authority is allowed to submit an application in court in order to terminate a criminal procedure in cases dealing with a second-degree offense in which a defendant's guilt is not relevant, the suspect or defendant has compensated (or started to compensate) damages caused by the crime, and there is no public interest to continue criminal procedure.
Parliament has enacted four cumulative requirements in order to implement this principle of opportunity. But adopting them into Estonia's national criminal procedure has caused widespread repercussions and elicited different opinions. For instance, the purpose of this opportunity principle is to give law enforcement authorities limited discretionary right to determine the proportional relationship between the depth of breach of legal order and the necessity to punish the criminal.
The debate has also highlighted that the applied obligations in case of implementing the principal of opportunity are rather similar to typical sanctions provided by the Estonian Penal Code 's e.g., arbitrary obligation to pay monetary sum refers to pecuniary punishment, and community service is comparable to alternative imprisonment 's i.e. alternative penalty.
Due to the fact that prosecutors have been given the right to terminate the criminal matter on the grounds of expedience, and thus the defendant is forced into the position of a convicted criminal, some might say that the prosecuting authority as the representative of the state has been given the role of arbitor of criminal justice. But since the constitution of Estonia (Article 146) gives the sole right of administation of justice to the court this is contrary to the principle of the separation of powers (Article 4).
So what distinguishes the result while implementing the principle of opportunity? One way to find an answer might be the different formal-judicial essential of legal terms. As proper to a state based on the rule of law, we should be guided by a "legislative-technical stencil method," according to which the terms used in legal acts must be unambiguous. The degrees of crimes (sanctions included) are numerus clausus way pointed out in penal code Article 4 's so the Article 4 does not point out any other type of sanction 's i.e. arbitrary obligation to pay monetary sum.
Hence it is not a sanction and should not be taken as one. The arbitrary obligation to pay a monetary sum to public coffers is just a unique obligational resolution by agreement when criminal procedure is terminated on the grounds of opportunity. One of the latest examples would be the so-called "Preatoni case." where an Italian businessman, Ernesto Preatoni, and other defendants were acquitted in the criminal matter and had to pay a certain sum to public coffers.
In addition, there will be no mark in the penal register in cases of opportunity that also support the statement of current article. So, while implementing the principle of opportunity provided in Code of Criminal Procedure Article 202 section 1, the suspect and defendant are acquitted before court hearing and judgement should not be treated as a convicted criminal in any case.
Simo Soolo is a lawyer at Teder, Glikman & Partnerid, a member firm of the Baltic Legal Solutions, a pan-Baltic integrated network of law firms including Kronbergs & Cukste in Latvia and Jurevicius, Balciunas & Bartkus in Lithuania, dedicated to providing a quality 'one-stop shop' approach to clients' needs in the Baltics.
