1. In its report on Estonia (fifth monitoring cycle) published on 13 October 2015, ECRI recommended that the authorities introduce without delay in parliamentary proceedings a draft amendment to Article 151 of the Criminal Code, removing the restriction whereby an offence cannot be deemed to have taken place unless it is proven that it entails a risk to the health, life or property of the victim. At the same time, ECRI recommended that the authorities put in place a system to collect data and produce statistics offering an integrated and consistent view of the cases of racist and homo/transphobic hate speech and violence brought to the attention of the police and/or being pursued through the courts.
With regard to the first part of the recommendation, ECRI has been informed that Article 151 of the Criminal Code has not been amended. The authorities, particularly the Ministry of Justice, are of the opinion that the current wording of Article 151 allows for the interpretation that the crime has taken place, without requiring a proof of risk to either the health, life or property of the victim. Based on information received from the Ministry of Justice, the Prosecutor’s Office and the police have been advised to interpret this provision more broadly to this end and hence, there is no intention to change the legislation. Recalling the importance of legal certainty, ECRI reiterates that the criminal law provisions must be sufficiently clear to provide individuals with the means to regulate their own conduct and to protect against any arbitrary use of the law. In ECRI’s view, Article 151 cannot be applied in line with its recommendation by way of interpretation and ECRI therefore concludes that this part of the recommendation has not been implemented.
ECRI takes positive note that significant steps have been taken in order to collect data and produce statistics on cases of racist and homo/transphobic hate speech and violence, which constitutes the second part of the recommendation. ECRI has been informed that, since the end of 2016 1 , the police are able to register reported cases on the basis of “hate motive” (vaenumotiiv in Estonian) that are available in different classifications which are as follows: i) bias against race, religion, origin; ii) bias against sexual orientation and gender identity; iii) bias against other groups. Once registered, all reported crimes are kept in an electronic system called E-File that is used by several databases including the Criminal Case Management Register, which is a database for prosecutors and investigative bodies. In addition, the Ministry of Justice has started to regularly publish data on hate crimes as part of its annual report on crime in Estonia. ECRI is pleased to note that a special chapter has been devoted to hate crimes in the 2016 report.2 The authorities have also informed ECRI that the Ministry of Justice prepared an instruction to describe methods for identifying hate crimes, on which law enforcement officials are currently receiving training. ECRI welcomes these developments and considers them to be very positive and important steps towards combating racism and intolerance more effectively. It therefore concludes that this part of the recommendation has been implemented.
1 Also see. http://hatecrime.osce.org/estonia
2 See p. 62-64, available on http://www.kriminaalpoliitika.ee/sites/krimipoliitika/files/elfinder/dokumendid/kuritegevus_eestis_est_web_0.pdf
Overall, ECRI considers that its recommendation has been partially implemented.
Document data: adopted 21.03.2018, public 15.05.2018; CRI(2018)23 Link: https://rm.coe.int/interim-follow-up-conclusions-on-estonia-5th-monitoring-cycle/16808b5705 Any developments which occurred after 23 November 2017 are not taken into account in this analysis