Summary

Section 255 of the Estonian Penal Code provides that membership in a criminal organisation (as a fact in itself) is punishable. However, the Special Part of the Penal Code includes provisions according to which committing a specific offence is punishable also in case such offence has been committed by a criminal organisation or membership in a criminal organisation constitutes a necessary element of the offence. The Penal Code includes twelve such special cases of necessary elements of offence.

The article analyses whether the said special cases of necessary elements of offence correspond to the provisions of formation of the qualification of a criminal organisation provided in subsection 255 (1) of the Penal Code. Thereafter the author demonstrates the discord in the Penal Code between these special cases of necessary elements of offence and the sanctions on the general necessary elements of offence of membership in a criminal organisation (subsection 255 (1) of the Penal Code). The author of the article shall also give reasons why, in the case of the currently valid Penal Code, adhering to the principle of lex specialis derogat legi generali is not always justified, since it may result in unequal treatment of both accused and convicted offenders over a rather long period of time. The author proposes solutions for eliminating the discord of the sanctions, while explaining why the solution proposed during revision of the penal power (repeal all special cases of necessary elements of offence of criminal organisations) is not the best possible solution. The author of the article also briefly touches upon the difference between the definition of a group and a criminal organisation.