Summary

Detention after service of sentence is a non-punitive measure granting the right to detain a person after full service of the fault-based sentence. The right to detain a person is justifiable by the potential menace posed to society and the legal rights of members of society. The judge passes the decision to impose a sanction as a discretionary decision on the basis of fault and the circumstances of the action committed, subject to certain formal and material conditions. In order to decide whether the person could pose a menace to society upon release, a danger assessment is carried out.

In Estonian law, the amendment to the Penal Code, which regulates the possibility to impose detention after service of sentence, entered into force on 24 July 2009, but remained in force for only two years. On 21 June 2011, the Supreme Court declared subsection 87² (2) of the Penal Code unconstitutional and consequently invalid. The Supreme Court found no constitutional grounds for imposing detention after service of sentence, thus ruling the provision to be in gross breach of a person’s liberty.

The author is seeking answers to the question of whether the Supreme Court’s ruling, which declared the detention after service of sentence unconstitutional, was sufficiently substantiated.