The Struggles of Estonia to Implement EU Criminal Law: Are the Fundamentals of the State Penal System at Risk?

Abstract

Today, countries are no longer as free in shaping their penal systems as they used to be. By becoming members of a supranational organisation such as the European Union (EU), states have agreed to pursue a common criminal policy for common goals. To this end , the EU member states have given the EU a considerable share of their penal power with the aim to fight crime. Punishments continue to be imposed and carried out by the member states themselves, but certain crimes and punishments are determined by EU law. Since traditionally the national penal system has been elaborated by states based on the peculiarities and needs of the particular society as well as the constitutional paradigm of the state, the question arises on how to implement clear-cut requirements coming from outside in a manner that adequately consider such aspects. This question is related both to the actual nature of state power and to the possibility of responding to unwanted behaviour, including crime, in accordance with the values and needs of the society. In any case, it must be approached delicately by considering the uniqueness of a state’s criminal justice system and at the same time respecting obligations to supranational organisations. This article serves as a poignant example of such dilemma by mapping out the difficulties the Estonian legislator and courts face while aiming to implement the EU criminal law.