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Estonia
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Restorative justice in Estonia 1 (up to date until February 2008)
1 This report has been compiled by the following persons: Aare Kruuser, Dean of the Law Faculty of Nord
University, K. Jaak Roosaare, Juris Doctor, Law faculty of Nord University and Õnne Lepik, candidate for
bachelor’s degree, Nord University. Information used in compiling this report has been provided by the following
officials: Einar Hillep, Ministry of Justice of Estonia, Criminal Policies Department, Penal Law and Criminal
Procedure Section, Advisor; Ülle Raig, Ministry of Justice of Estonia, Criminal Policies Department, Penal Law
and Criminal Procedure Section, Advisor; Trsitan Ploom, Republic of Estonia, Public Prosecutor’s Office,
Department of Crimes Against the State and International Cooperation, Assistant Prosecutor; Anu Rannaveski,
Ministry of Social Affairs of Estonia, Social Welfare Department, Chief Specialist; Ene Päll, Social Insurance
Board, Director of the Victim Assistance Department; Aare Vilu, Ministry of Education and Research of Estonia,
Department of Juvenile Affairs, Chief Expert.
1. Legal base
In accordance with the Council Framework Decision 2001/220/JHA of the European Union, mediation
in criminal proceedings has been regulated by the Code of Criminal Procedure of Republic of Estonia
(see: http://www.legaltext.ee/en/andmebaas/ava.asp?m=022 ) since February 18, 2007.
Excerpt:
§ 203 1. Termination of criminal proceedings on the basis of conciliation
(1) If facts relating to a criminal offence in the second degree which is the
object of criminal proceedings are obvious and there is no public interest in
the continuation of the criminal proceedings and the suspect or the accused
has reconciled with the victim pursuant to the procedure provided for in §
203 2 of this Code, the Prosecutor’s Office may request termination of the
criminal proceedings by a court with the consent of the suspect or accused
and the victim. Termination of criminal proceedings is not permitted:
1) in criminal offences specified in §§ 122, 133, 134, 136, 138, 139, 141–
143, 214 and 263 of the Penal Code [editor’s note: these criminal offences
include torture, enslaving, abduction, unlawful deprivation of liberty , illegal
conduct of human research, illegal removal of organs or tissue, rape,
satisfaction of sexual desire by violence, compelling a person to engage in
sexual intercourse, extortion, aggravated breach of public order];
2) in criminal offences committed by an adult person against a victim who is
a minor;
3) if the criminal offence resulted in the death of a person;
4) in crimes against humanity and international security, against the state,
criminal official misconduct, crimes dangerous to the public and criminal
offences directed against the administration of justice.
(2) A request of a Prosecutor’s Office shall be adjudicated by a ruling of a
judge sitting alone. If necessary, the conciliator, the prosecutor, the victim,
the suspect or accused and, at the request of the suspect or accused, also
the counsel shall be summoned to the judge for the adjudication of the
request of the Prosecutor's Office.
(3) In the event of termination of criminal proceedings, the court shall
impose, at the request of the Prosecutor’s Office and with the consent of the
suspect or the accused, the obligation to pay the expenses relating to the
criminal proceedings and to meet some or all of the conditions of the
conciliation agreement provided for in subsection 203 2 (3) of this Code on the
suspect or accused. The term for the performance of the obligation shall not
exceed six months. A copy of the ruling shall be sent to the conciliator.
(4) If the judge does not consent to the request submitted by the
Prosecutor’s Office, he or she shall return the criminal matter on the basis of
his or her ruling for the continuation of the proceedings.
(5) If a person with regard to whom criminal proceedings have been
terminated pursuant to subsection (1) of this section fails to perform the
obligations imposed on him or her, the court, at the request of the
Prosecutor's Office, shall resume the criminal proceedings by an order.
(6) If the object of criminal proceedings is a criminal offence in the second
degree for which the minimum rate of imprisonment is not prescribed as
punishment or only a pecuniary punishment is prescribed as punishment by
the Special Part of the Penal Code, the Prosecutor's Office may terminate
the criminal proceedings and impose the obligations on the grounds specified
in subsections (1) and (3) of this section. The Prosecutor's Office may
resume terminated criminal proceedings by an order on the grounds
specified in subsection (5) of this section.
(7) A victim has the right to file an appeal against a ruling on termination of
the criminal proceeding made on the basis of this section within ten days as
of receipt of a copy of an order on termination of the criminal proceedings
pursuant to the procedure provided for in §§ 228–232 or §§ 383–392 of this
Code.
(17.01.2007 entered into force 18.02.2007 - RT I 2007, 11, 51)
§ 203 2. Conciliation proceedings
(1) The Prosecutor’s Office or court may, on the bases provided for in
subsection 203 1 (1) of this Code, send the suspect or accused and the victim
to conciliation proceedings with the objective of achieving conciliation
between the suspect or accused and the victim and remedying of the
damage caused by the criminal offence. The consent of the suspect or
accused and the victim is necessary for application of conciliation
proceedings. In the case of a minor or a person suffering from a mental
disorder, the consent of his or her parent or another legal representative or
guardian is also required.
(2) The Prosecutor's Office or court shall send the order or ruling on
application of conciliation proceedings to the conciliator for organisation of
conciliation.
(3) The conciliator shall formalise the conciliation as a written conciliation
agreement which shall be signed by the suspect or accused and the victim
and the legal representative or guardian of a minor or a person suffering from
a mental disorder. A conciliation agreement shall contain the procedure for
and conditions of remedying of the damage caused by the criminal offence. A
conciliation agreement may contain other conditions.
(4) The conciliator shall send a report with a description of the course of
conciliation to the Prosecutor’s Office. In event of conciliation, a copy of the
conciliation agreement shall be annexed to the report.
(5) After the termination of the criminal proceedings, the conciliator shall
verify whether or not the conditions of the conciliation agreement approved
as an obligation pursuant to the procedure provided for in subsection 203 1 (3)
of this Code are met. A conciliator has the right to request submission of
information and documents for confirmation of the performance of the
obligation. The conciliator shall notify the Prosecutor’s Office of performance
of the obligation failure to perform the obligation.
(6) The conciliator has the right, in performing his or her duties, to examine
the materials of the criminal matter with the permission of and to the extent
specified by the court. A conciliator shall maintain the confidentiality of facts
which have become known to him or her in connection with the conciliation
proceedings. A court or a Prosecutor’s Office may summon a conciliator for
oral questioning in order to clarify the content of the agreement of the
conciliation proceedings.
Excerpt:
Chapter 2 2
(17.01.2007 entered into force 18.02.2007 - RT I 2007, 11, 51)
Conciliation Service
(17.01.2007 entered into force 18.02.2007 - RT I 2007, 11, 51)
6 3. Conciliation service
(1) For the purposes of this Act, conciliation service is a public service
which consists of organisation of the conciliation procedure provided for in §
2032 of the Code of Criminal Procedure and monitoring of compliance with
the requirements of a written agreement entered into as a result thereof.
(2) Application of a sanction provided for in clause 3 (1) 4) of the Juvenile
Sanctions Act is also deemed to be conciliation service.
(17.01.2007 entered into force 18.02.2007 - RT I 2007, 11, 51)
§ 6 4. Provision of conciliation service
(1) The provision of conciliation service shall be ensured by the Social
Insurance Board in accordance with the principle of regionality.
(2) The procedure for conducting conciliation service shall be established
by the Government of the Republic.
(17.01.2007 entered into force 18.02.2007 - RT I 2007, 11, 51)
The process of conciliation and other necessary procedures are delegated by statute to be regulated
by government decrees. The procedure for conducting conciliation services is established by Decree
No. 188 of the Government of the Republic of Estonia, dated July 13, 2007, entitled “Procedure for
Carrying Out Concilation Proceedings”.
The method for carrying out the conciliation procedure for minors is regulated by the Juvenile
Sanctions Act § 3 (see: http://www.legaltext.ee/en/andmebaas/ava.asp?m=022 ) paragraph 1, point 4,
which in authorized the Social Ministry to promulgate its Decree No. 44 of July 31, 1998, which
confirmed the Conciliation Procedures. Thus, minors and juveniles can also be referred to conciliation
[mediation] by Juvenile Commissions.
Excerpt:
§ 3. Sanctions
(1) One or several of the following sanctions may be imposed on a minor:
1) warning;
2) sanctions concerning organisation of study;
3) referral to a psychologist, addiction specialist, social worker or other
specialist for consultation;
4) conciliation;
5) an obligation to live with a parent, foster-parent, guardian or in a
family with a caregiver or in a children’s home;
(16.05.2001 entered into force 01.07.2001 - RT I 2001, 50, 288)
6) community service;
7) surety;
8) participation in youth or social programs or rehabilitation service or
medical treatment programs;
(08.12.2004 entered into force 01.01.2005 - RT I 2004, 89, 603)
9) sending to schools for students with special needs.
(16.05.2001 entered into force 01.07.2001 - RT I 2001, 50, 288)
(2) The following may be imposed on a minor:
1) warning, referral to a psychologist, addiction specialist, social worker
or other specialist for consultation, conciliation, obligation to live with a
parent, foster-parent or guardian or in a children’s home, surety, participation
in youth or social programs or rehabilitation service in the cases provided for
in subsections 1 (2) and (3) of this Act;
(08.12.2004 entered into force 01.01.2005 - RT I 2004, 89, 603)
2) community service in the cases provided for in subsections 1 (2) and
(3) of this Act;
(16.05.2001 entered into force 01.07.2001 - RT I 2001, 50, 288)
3) sanctions concerning organisation of study in the cases provided for
in clause 1 (3) 1) of this Act;
4) referral to medical treatment in the cases provided for in clause 1 (3)
2) of this Act;
5) sending to a school for students with special needs in the cases
provided for in subsection 1 (2) of this Act in accordance with § 6 of this Act.
(16.05.2001 entered into force 01.07.2001 - RT I 2001, 50, 288)
In accordance with the Penal Code of Estonia § 57, paragraph 1, point 9, conciliation with the victim is
a mitigating factor with regard to punishment.
(see: http://www.legaltext.ee/en/andmebaas/ava.asp?m=022 )
Conciliation procedures are used as one of the resocialization methods employed in prisons and within
the criminal care system.
2. Scope
The provisions for conciliation in criminal matters are mainly aimed at securing a better position for
victims of crime. They also have some elements that focus on the resocialization of the offender. In
addition to the requirement of restitution for the victim, the offender’s agreement to participate in social
programs or treatment programs can be among the possible outcomes of conciliation. The conciliation
process is directed by an independent conciliator.
Conciliation can result in the waiver of criminal prosecution in crimes that are punishable by a
maximum of 5 years imprisonment (following the opportunity principle). In cases of more serious
crimes, the penalty may be decreased. There is only one special provision for minors which states that
minors and juveniles may also be referred to conciliation by Juvenile Commissions. The primary
official responsible for deciding which cases should be handled by conciliation is the public prosecutor.
3. Implementation
3.1. Agencies: establishment and structure
It is possible to terminate criminal proceedings against a person accused of the aforementioned
second degree crimes if the parties to the crime have completed an out-of-court conciliation
procedure. This out-of-court conciliation procedure is voluntary for both the victim and the accused
and the goal of the procedure is increase the chances of success for the resocialization of the
perpetrator of the act through the conciliation of the parties (victim and perpetrator) and to compensate
the victim for injuries and loss suffered. Specialists serving in Social Security Victim Assistance
Department within the Ministry of Social Affairs serve as the mediators [conciliators]. Twelve such
professionals have received special schooling in carrying out mediation procedures both in 2006 and
2007. (The national system for providing victim assistance services with 35 workers in 16 local victim
assistance centers was established in Estonia in 2005.)
3.2. Agencies: practice and intervention type
According to the State Prosecutor’s figures, conciliation procedures were used in connection with 31
crimes perpetrated by 21 individuals during 2007.
Type of Crime Number of cases resolved through conciliation procedures
Physical Abuse 23
Assault 3
Failure to Pay Child Support 2
Theft 1
Unauthorized Use of Property 1
Breaking and Entering 1
Total 31
4. Evaluation
The requrements established by the Council Framework Decision 2001/220/JHA of the European
Union have been fulfilled. Alternative forms of punishment have been developing constantly since the
creation of probation supervision in 1998. A formal legal basis and a competent institutional framework
have been created to support the realization of the conciliation procedure. The funding of the
conciliation procedure has been guaranteed by the State budget. The preliminary prognosis for the
next several years is that there will be between 50 to 100 conciliation procedures carried out per year.
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