Post-sentence Preventive Detention

2008 and 2009 could be best described, in the context of personal liberty, by the amendments made to the Penal Code, the Criminal Procedure Act (CPA), and to an extent, by those made to the Imprisonment Act.[1] These amendments had to do with the people who have served their full sentence in prison. The aforementioned amendments have extended the option of being subject to supervision of conduct, which previously affected only those who were released before the prescribed time. They also prescribed the additional option of being subjected to post-sentence preventive detention. Accordingly, a convicted offender, who has already served his or her prison sentence, may not necessarily be released from the penal institution.

Post-sentence preventive detention is not in itself a measure that violates human rights. This recourse, in one form or another, is used by several European states.[2] The European Court of Human Rights (ECtHR) has had the opportunity to analyse this measure and has not deemed it necessary to ban it.[3] It is, however, a measure that greatly limits a person’s right to personal liberty. This, in turn, means that the circumstances in which this measure is applied, and on which conditions, are of utmost importance. The changes made to Estonian acts may not have been given thorough enough consideration in this regard.

Post-sentence preventive detention in Estonia

According to the amendments made to the Penal Code and CPA, a person may be kept in detainment after he has served his sentence in prison. The need for such a measure shall be determined by the court along with the initial judgment. In other words, the decision to detain a person post-sentence is made before the person even starts serving his or her sentence (Penal Code §872(2)). In order to even consider the application of post-sentence preventive detention at all, the following conditions must be met (Penal Code §872(2)):

  • The person is convicted of a violent crime, which was directed at “the most essential of legal rights”[4] (life and health, sexual offences, offences against liberty, extremely dangerous offences, and offences, which as an element necessary to constitute the offence entail the use of violence – for example robbery, extortion);
  • The criminal offence is committed intentionally;
  • “The person is sentenced to at least two years imprisonment without parole”;
  • “The convicted offender has been convicted on at least two prior occasions … of one of the named offences and has been sentenced to at least one year in prison each time” (in certain cases the person may have no prior convictions or have been convicted only once (Penal Code §872(3) and (4)); and
  • “There is reason to believe – considering the person convicted, his previous life and living conditions, as well as circumstances surrounding the committed offences – that the person will, because of his proclivity to crime, commit more offences of a similar nature when released into society”.

Post-sentence preventive detention is not subject to a time limit. The prerequisite to the person being released is the discontinuation of his/her harmfulness or threat he/she poses to society (Penal Code §873(1) and CPA §4262(1)). Whether the person is still harmful or not is evaluated on the same basis as upon application of post-sentence preventive detention initially. In addition to that, his behaviour whilst serving his or her sentence and post-sentence detention is kept in mind. As a rule, it is forbidden to continue the post-sentence preventive detention for more than ten years (Penal Code §873(2)). The need for continuation of the detention is checked upon by a judge routinely, at least bi-annually, whereas the first check-up must take place immediately after his original sentence has been served. Release can be applied for by the offender, his legal representative (for the first time after the passing of a year after the end of hisor her sentence and the start of his or her post-sentence preventive detention and from there on after, up to once a year) and the release may also be applied for by the head of the penal institution (at any time) (CPA §4262(3) and (4)).

Such post-sentence preventive detention is very similar to that prescribed by the German system, which the Ministry of Justice, who initiated these amendments, seems to have based the Estonian system on.

Accordance with human rights

Any kind of detention of a person must be prescribed by law – this condition has been met in this instance. In addition to that the detention cannot be arbitrary – it must have a legitimate aim and the detention must be in accordance with that purpose.[5] The purpose, according to the explanatory memorandum to the draft legislation, is to increase safety in society by decreasing repeating offences.[6] The question as to whether this purpose is the kind that is prescribed by Estonian Constitution and European Convention of Human Rights (ECHR) has caused great controversy among Estonian legal scholars.

The explanatory memorandum to the draft legislation has suggested that in the case of post-sentence preventive detention two possible situations allowed by ECHR can be mentioned – detention based on the judgment of conviction (Constitution §20 p 1 and ECHR, Art 5(1a)) or detention for the prevention of an offence being committed (Constitution §20 p 3 and ECHR, Art 5(1c)). The latter must be cast aside as the ECtHR has demanded that the suspicion be founded on reasonable doubt, which requires sufficiently specific details as to place, time and the victim of the offence.[7] This is not a measure that would require such a level of specificity for its application.

The first of these allowed objectives, which can be the basis of post-sentence preventive detention, holds considerably more weight. The ECtHR, in its recent decision concerning Germany, has upheld the applicability of this measure for this purpose.[8] The reason for this is the fact that post-sentence preventive detention is decided along with a convicting judgment. Therefore, post-sentence preventive detention as such does not violate personal liberty, if the need for it is proved with sufficient clarity and the conditions, which must be met to allow the application of the measure, having the objective of the measure in mind.

One of the biggest reproaches made to the amendment that entered into force in 2009 is that the Ministry of Justice has not managed to prove the need for post-sentence preventive detention. Nobody denies the fact that there are repeating offenders, who upon release from prison are as dangerous if not even more dangerous than when they began their sentence. However, the Ministry of Justice is reproached for lack of analysis as to the circumstances that have caused this situation.[9] The way in which the system has failed has not been investigated and neither has the possibility of whether it can be improved in a way that burdens human rights less.

The criminal policy in force thus far saw the conviction of a person not only for the purpose of condemnation of their deed, but also for the purpose of making society safer and in the end for the purpose of directing the convicted person toward law-abiding behaviour.[10] The Imprisonment Act provides that the conviction should work towards achieving these objectives and places specific measures for achieving that end (§6(1) and 16). The outcome of imprisonment has to eventually be re-socialisation of the person.[11] According to the explanatory memorandum to the draft legislation, the objectives of post-sentence preventive detention are the same, though perhaps in a different hierarchy and excluding the element of punishment.[12] Since Estonian criminal policy was set about to achieve the same objectives as those that now serve as the objectives for post-sentence preventive detention, this will bring no additions. Therefore, the need for post-sentence preventive detention cannot be grounded on this justification.

One possible justification for post-sentence preventive detention may be the creation of additional motive for the convict – if they do not behave in accordance with society’s norms they will not be released. However, the longer a person stays in prison, the less likely he or she is to return to society as a fully-fledged member.[13] Such convicts, serving prolonged sentences, do not see release as a realistic possibility and therefore do not work toward it. The outcome is effectively that the person goes to prison not knowing when he or she will be released. This is the equivalent of an endless conviction for him. The legislator may call post-sentence preventive detention a measure of influence, yet the person, who is subject to the measure, perceives this as a punishment without a date of expiration.[14] It is likely that the post-sentence preventive detention shall make the person’s re-socialisation harder. As a result of this, prisons hold people with problems due to the lack of a better solution.

It is no use to anyone just having convicts ‘killing‘ their time in a penitentiary institution, if no active work is done towards making these people less dangerous upon release into society. Jüri Saar has criticised the “lack of tradition of socio-therapeutic institutions for criminals and experience of founding them in Estonia”.[15] If there are no such institutions at the moment, and their absence hinders achieving the objective of re-socialising convicts to society, then what is the use of the continuation of detention of criminals? This, in essence, means that those people are simply kept off the streets without any actual attempts to rehabilitate them. In the absence of any special programmes and staff, a person previously considered dangerous does not become any less dangerous just from having spent time in jail. The changes to law that came to effect this summer do not state anything new in this regard.

Without special measures directed towards the rehabilitation of the person post-sentence preventive detention is not in accordance with human rights. The ECtHR emphasizes the importance of the special programmes referring to opinions of the Council of Europe Commissioner for Human Rights and European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.[16] People who undergo post-sentence preventive detention need psychological help and support even more than people who are serving their sentence. Measures directed at them cannot be the same as those directed at those serving their sentence as those measures have clearly not had an effect on these people before and they are not capable of working towards rehabilitation on their own. It is also important to keep in mind that the detention of those people does not have a prescribed end date and therefore a special approach is needed.

ECtHR as well as the European Committee for the Prevention of Torture referred to a general lack of motivation of post-sentence preventive detainees in Germany. Most of them are primarily just killing time in penitentiary institutions and do not consider their eventual release a realistic possibility. The court stated that such detainees need to be in contact with a trained multidisciplinary staff. But this all requires a specific action plan and a programme that includes all the steps that make eventual release a probability.

There are no programmes in place directed towards the rehabilitation of persons in post-sentence preventive detainees in Estonia. The amendments that came into force in July does not contain any provisions as to how the decrease of dangerousness of these persons is achieved or as to the special preparations to facilitate their return to society. As a result, there is a danger that a group of detainees will form, who are simply counting the time until their ten years are up, after which they will be released, whether they are a threat to society or not. According to the publicly available information, the Ministry of Justice does not plan to incorpo­rate such programmes for post-sentence preventive detention into Estonian law. Therefore, post-sentence preventive detention does not seem to be capable of being effective in achieving the objectives posed to it.

In addition to shortcomings in justifying the necessity of the post-sentence preventive detention, the critics of this measure have also referred to deficiencies in its rules of application. When most of the preconditions for the application of post-sentence preventive detention are formal and an extensive analysis is not necessary to determine their presence, the determination of the level of dangerousness is more complicated.[17] This requires a certain prognosis of the person’s behaviour some time in the future. It is difficult not to agree with Jüri Saar’s claim, that “post-sentence preventive detention is similar to psychiatric coercive treatment but it is applied without a diagnosis” because the court “is dealing with a future danger stemming from characteristics of personality”.[18] Giving such appraisals presupposes competent expertise, which is not compulsory according to amendments that entered into force this summer (CPA §432(3)). Public Prosecutor’s Office as well as Chancellor of Justice have expressed their concern about this in the explanatory memorandum to the draft legislation.[19] Despite their warning this seemingly problematic provision remained in the Act that was adopted.

The validity of the necessity for post-sentence preventive detention is doubtful in a situation where the sentence itself is long and therefore the judge has to in fact make a decision as to a person’s state of mind 10 or 15 years in advance.[20] Several researches have shown that it is not possible to predict a person’s behaviour upon release solely based on his behaviour in prison.[21] The same reservations were expressed by the Council of Europe Commissioner for Human Rights in his synopsis of the visit to Germany.[22]


Any measures limiting human rights have to be considered thoroughly. Post-sentence preventive detection is a measure that restricts human rights. This measure has to be the last resort for achieving the specific objective. This not only means that it has to be the last resort considering the specific person, his behaviour and state of mind but it also means it has to be the last resort available for the state. The objective of post-sentence preventive detention is the protection of society. Whether this is, in this particular form, the only available measure for achieving this aim in Estonia remains unclear. The state has to use measures for achieving its aims that burden human rights as little as possible and still achieve the objectives posed – in this case protecting society from dangerous repeat offenders.

The preceding analysis shows that post-sentence preventive detention may not in fact achieve the posed objectives. Nor does it become evident either from the explanatory memorandum to the draft legislation that introduced this measure to Estonian law or from other explanations from the Ministry of Justice if the same objectives could be achieved through alternative measures. The reasoning that other states use this measure is not sufficient. As is apparent from the decision of the ECHR in the M v Germany case, Germany has significant shortcomings in its post-sentence preventive detention system and they have not gone without notice from the international organisations.

These are the circumstances and issues that should have been thoroughly investigated before introducing the measure of post-sentence preventive detention into Estonian law. Curtailing person’s liberty in this form could be classified as arbitrary. The Supreme Court is of the opinion that litigation over constitutionality of this limitation will follow and has apparently therefore refrained from giving an extensive substantive opinion.[23]

[1] RT [State Gazette] I 2009, 39, 261 (entry into force on 24 July 2009).

[2] Explanatory memorandum to the draft Act refers to 8 states (Austria, Belgium, Lichtenstein, Norway, Sweden, Germany, Great Britain, Switzerland). – Government of Republic, Explanatory memorandum to “The act that amends the Penal Code, the Law of Criminal Procedure and Imprisonment Act” (Draft Act 382).  Sootak has also referred to 6 more European states (Spain, Netherlands, Italy, Slovak Republic, Czech Republic, Hungary). – Jaan Sootak, Mida teha, kui isiku ohtlikkus on süüst suurem? Saksamaa kogemuse mittekaristuslike mõjutusvahendite osas [What to do if a person’s hazardousness outweighs his guilt? Germany’s experience in non-punitive sanctions], Juridica VII/2006.

[3] The latest chance for it presented itself in the case of M v Germany (17 December 2009).

[4] Explanatory memorandum to the draft Act (reference 2), p 8.

[5] European Court of Human Rights, Kurt v Turkey (25 May 1998).

[6] Explanatory memorandum to the draft Act (reference 2), pp 1, 20.

[7] M v Germany (reference 3), para 102.

[8] M v Germany (reference 3), paras 94-5.

[9] Mare Allas (Chief specialist to the department of legal knowledge, Supreme Court), On the act that amends the Penal Code, the Law of Criminal Procedure and Imprisonment Act, letter to Ministry of Justice no 10-4-1-7 (29.09.2008).

[10] Explanatory memorandum to the draft Act (reference 2), p 20.

[11] Sootak (reference 2), p 526.

[12] Explanatory memorandum to the draft Act (reference 2), p 20.

[13] This matter of fact has been pointed out by Sootak in his article (reference 2), p 526.

[14] M v Germany (reference 3), paras 74, 126, 130; also Sootak (reference 2), p 524.

[15] Jüri Saar, Karistusjärgne kinnipidamine ja Eesti kriminaalpoliitika [Post-sentence preventive detention and Estonian criminal policy], Juridica II/2009, p 120.

[16] M v Germany (reference 3), paras 76-77, 129.

[17] Jüri Saar (reference 15) (p 118) has also referred to another prerequisite, which he considers too vague for a measure this serious – list of criminal offences, which may cause a post-sentence preventive detention, “is open and ends with the words “other intentionally committed criminal offences, which as an element necessary to constitute an offence entail use of violence (for example robbery)“.”

[18] Saar (reference 15), p 116.

[19] Norman Aas (the Chief Public Prosecutor, Public Prosecutor’s Office), Eelnõu kohta arvamuse avaldamine, kiri justiitsministeeriumile [Opinion on the draft, a letter to Ministry of Justice] no RP-1-8/08/1689 (25.09.2008), p 2; Legal Affairs Committee at the Parliament, Explanatory memorandum to the act that amends the Penal Code, the Law of Criminal Procedure and Imprisonment Act, 08.06.2009, p 4.

[20] Aas (reference 19), p 2.

[21] Saar (reference 15), p 117.

[22] Report by the Commissioner for Human Rights, Thomas Hammarberg, on his visit to Germany, 9-11 and 15-20 October 2006, CommDH (2007) 14 (11 July 2007), para 203.

[23] Allas (reference 9).