Summary

The Penal Code passed by the Riigikogu on 6 June 2001 abandons the four-element structure of offence known in the Soviet criminal law. The finalist treatment of offence is substantially different from the Soviet approach, introducing several new concepts to the Estonian penal law and redefining former concepts. The author compares the elements of an offence as defined in the Soviet criminal law with the classical concept of offence and with the structure of offence introduced by the new Estonian Penal Code, which replaces the psychological concept of offence with a normative one. According to the Penal Code, commission of a wrongful act means performance of an unlawful act, consisting of defined elements, by a person capable of guilt, without the presence of circumstances precluding guilt. Therefore, two types of circumstances should be differentiated, in the presence of which a person who has committed an unlawful act consisting of defined elements is free of guilt: (1) the person is not capable of guilt, i.e. circumstances precluding guilt are present, (2) the person is capable of guilt but circumstances precluding guilt are present. The author examines regulation of incapacity of guilt caused by age and of mental incompetence as circumstances precluding guilt under the Penal Code. Further the author analyses whether decisions on actions committed in the state of mental incompetence constitute empirical or normative evaluations. The author also looks at the concept of diminished mental capacity introduced by the Estonian Penal Code and suggests how the respective provisions could be interpreted. Finally the author examines problems related to mental incompetence resulting from a state of intoxication, and circumstances precluding guilt.