Summary

In 2009, the Riigikogu adopted an amendment that introduced a new sanction — preventive detention after punishment — to penal law. This meant detention of individuals who had served their sentence, in case the individual continued to pose a threat to society. Keeping individuals for their preventive detainment in prison is considered punishment both by the European Court of Human Rights and the Supreme Court of Estonia. Firstly, detention after an individual has served their sentence is a restriction of their fundamental right to liberty — the person is detained in an establishment isolating them from society. Moreover, individuals were detained in prisons where their regime was generally the same with the rest of the convicts. Neither did preventive detention differ from imprisonment by the assistance afforded to the individuals to make them less dangerous to society.

At the same time, the European Court of Human Rights considered the institute of preventive detention to be essentially in conformity with Article 5 (1) a) of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Federal Constitutional Court of Germany did not view preventive detention as a violation of fundamental rights, either. However, the Supreme Court of Estonia declared it unconstitutional in 2011. The Supreme Court has, in its interpretation, essentially ruled out preventive detention as an option in Estonian penal law.

After 2011, it has remained ambiguous which options are available to the Estonian legislator and how to solve the problem of recidivism in the future. In light of the decision made by the Supreme Court en banc in 2011, this article searches for ways to save the institute of preventive detention.