Summary

In his speech before parliament on 20 May 2010, Chief Justice Märt Rask of the Supreme Court noted that 55.6% of Estonian residents are entered in the criminal register. In his opinion, such overcriminalisation is problematic, and parliament should take this into account. On 9 June 2010, a mere three weeks later, the Riigikogu adopted the new Basic Schools and Upper Secondary Schools Act, which set out yet another new offence. Has the legislative process set a trend by which punishment becomes an inseparable part of any piece of legislation, and does this not lead to overcriminalisation? What does overcriminalisation actually mean? Is it merely the case where punishment has been imposed on a large part of the population, is it the overregulation of societal life under penal law or is it something more? The author endeavours to answer these questions in this article.

The article is based largely on an analysis on overcriminalisation prepared by the Supreme Court. The author examines trends in Estonian penal law with the goal of providing a preliminary assessment of the role of penal law in ensuring lawful behaviour, and of penal practice. The author also examines the case-law of the European Court of Human Rights, in particular in the interpretation of Article 6 of the European Convention on Human Rights, which relates to the concepts of criminal punishment and misdemeanour caution procedure, primarily in the form of written caution procedure.