Summary

Penal law is composed of penal law acts. Unfortunately, this trivial thought can also be expressed somewhat mischievously and we can ask: if penal law is composed of penal laws, then what exactly is it composed of? What are the norms that declare an act to be prohibited and punishable and thereby form the bases and limits of the state’s repressive intervention?

The answer to the definition of the concept of penal law is provided for in subsection 1 (2) of the Penal Code, by which penal law is no more than an offence set out in the Penal Code (as a whole or some of its norms) or in some other Act. Other legislation can enter the realm of penal law only through these gates, which in practice means application of a provision providing for an offence (subsumation of an act and the imposition of punishment) or resolution of a matter involving the retroactive force of penal law pursuant to section 5 of the Penal Code, which also is no more than the resolution of a matter through the subsumation of an act. Provisions detailing an offence and punishment for that offence and the retroactive force of penal law are considered as “kin” and are allowed entry as dependents into the realm of penal law. For example, a norm from another Act (or, in the case of systematic interpretation, the entire Act) enters the world of penal law through a provision that refers to offences outside of the Penal Code, where it may function under the careful eye of this provision. Movement in the opposite direction is not possible: penal law does not flow out of this blanket norm to flood the Estonian legal landscape. “Strangers” (e.g. clemency, procedural norms and execution norms) are not admitted.