Chapter 10PROCEDURE BEFORE COUNTY COURTS
[RT I 2005, 39, 308 - entry into force 01.01.2006]
Division 6Making of Court Judgment
§ 306. Issues to be resolved when giving judgment and the signing of judgment
(1) When giving judgment, the court shall resolve the following issues:
1) whether the act of which the accused is accused occurred;
2) whether the act was committed by the accused;
3) whether the act is a criminal offence and on which section, subsection and clause of the Penal Code the legal assessment of the act shall be based;
4) whether the accused is guilty of the commission of the criminal offence;
5) whether mitigating or aggravating circumstances exist;
6) the punishment to be imposed on the accused;
61) whether commutation shall be granted due to exceeding of the reasonable time of proceedings;
[RT I, 23.02.2011, 1 - entry into force 01.09.2011]
7) whether the accused is to be released from punishment or whether a substitutive punishment is to be imposed;
(7.1) [repealed - RT I, 05.07.2013, 2 - entry into force 15.07.2013]
8) whether the accused who is a minor is to be punished for the criminal offence committed or whether non-punitive sanctions are to be applied against him or her;
9) whether new preventive measures are to be chosen or the valid preventive measure is to be maintained, altered or annulled in the case of conviction;
10) the measures to be applied with regard to the minor children of the accused who are left unsupervised, and to his or her property, if he or she is convicted and sentenced to imprisonment;
11) whether and to which extent to grant the civil action or the proof of claim in public law or compensate for the damage caused by the criminal offence;
[RT I, 06.01.2016, 5 - entry into force 01.01.2017]
12) whether it is necessary to take measures for securing a civil action or proof of claim in public law, confiscation or substitution thereof;
[RT I, 06.01.2016, 5 - entry into force 01.01.2017]
12.1) whether the amount ordered to be paid under substitution of confiscation is payable at one time or in parts, whereas taking into account the financial situation and chances of re-socialisation of a convicted offender, a court may extend the term for the payment of the amount ordered to be paid in full or in part for up to two years or order payment thereof in instalments on specified dates;
[RT I, 06.01.2016, 5 - entry into force 16.01.2016]
13) how to proceed with regard to physical evidence and other objects taken, seized or subject to confiscation in the criminal procedure;
[RT I 2007, 2, 7 - entry into force 01.02.2007]
14) the expenses relating to criminal proceedings and the person who is to bear the expenses;
15) whether the document which contains the data required for payment of the claim and specified in subsection 145 (41) or subsection 159 (3) constitutes an annex to the decision;
[RT I, 21.06.2014, 11 - entry into force 01.07.2014]
16) whether and to what extent to grant the request of the person to compensate for damage caused in offence proceedings pursuant to the Compensation for Damage Caused in Offence Proceedings Act.
[RT I, 20.11.2014, 1 - entry into force 01.05.2015]
(2) The issues listed in subsection (1) of this section shall be resolved separately with respect to each accused and each criminal offence.
(3) After resolving the issues listed in subsection (1) of this section, a court judgment or the conclusion thereof shall be prepared and all the members of the court panel shall sign the judgment digitally. The assistance of a court official may be used in the formalisation of a court judgment.
[RT I, 21.06.2014, 11 - entry into force 01.07.2014]
(3.1) A court may make and sign a judgment on paper if compliance with the requirements provided for in subsection (3) of this section is impossible due to reasons independent of the court or members of the panel.
[RT I, 21.06.2014, 11 - entry into force 01.07.2014]
(4) A judge who maintains a minority position shall submit his or her dissenting opinion in writing and the opinion shall be included in the file but shall not be disclosed upon the pronouncement of the court judgment.
(5) After signing a court judgment, a court may, on its own initiative or at the request of a party to judicial proceedings, correct spelling or calculation mistakes or obvious inaccuracies in the court judgment if such corrections do not affect the content of the judgment. The mistakes shall be corrected by an order the copy of which is sent to persons to whom a copy of the judgment containing mistakes was issued.
Part 1 GENERAL PART
Chapter 4 IMPOSITION OF PUNISHMENT
Division 1Bases for Imposition of Punishments
§ 56. Basis for punishment
(1) Punishment shall be based on the guilt of the person. In imposition of a punishment, a court or a body conducting extra-judicial proceedings shall take into consideration the mitigating and aggravating circumstances, the possibility to influence the offender not to commit offences in the future, and the interests of the protection of public order.
(2) Imprisonment may be imposed only on the condition that the aims of the punishment cannot be achieved by a less onerous punishment. If a section of the Special Part of this Code prescribes, in addition to imprisonment, less onerous punishments, the court shall provide in its judgment the reasons for the imposition of imprisonment.
(3) A minor may be imposed a punishment only in the case it is impossible to influence the minor not to commit offences in the future by sanctions applicable to minors.
§ 57. Mitigating circumstances
(1) Mitigating circumstances are:
1) prevention of harmful consequences of the offence, and provision of assistance to the victim immediately after the commission of the offence;
2) voluntary compensation for damage;
3) appearance for voluntary confession, sincere remorse, or active assistance in detection of the offence;
4) commission of the offence due to a difficult personal situation;
5) commission of the offence under threat or duress, or due to service, financial or family-related dependent relationship;
6) commission of the offence in a highly provoked state caused by unlawful behaviour;
7) commission of the offence by a pregnant woman or a person in an advanced age;
8) commission of the offence in excess of the limits of self-defence;
9) conciliation with the victim.
(2) Circumstances not specified in subsection (1) of this section may be taken into consideration in imposition of a punishment.
§ 58. Aggravating circumstances
Aggravating circumstances are:
1) self -interest or other base motives;
2) commission of the offence with peculiar cruelty, or degradation of the victim;
3) commission of the offence knowingly against a person who is less than eighteen years of age, pregnant, in an advanced age, in need of assistance or has a severe mental disorder;
4) commission of the offence against a person who is in a service or financially dependent relationship with the offender, and against a former or current family member of the offender, against a person who lives with the offender or a person who is otherwise in a family relationship with the offender;
5) commission of the offence during a state of emergency or state of war;
6) commission of the offence by taking advantage of a public accident or natural disaster;
7) commission of the offence in a manner which is dangerous to the public;
8) causing of serious consequences;
9) commission of the offence in order to facilitate or conceal another offence;
10) commission of the offence by a group;
11) taking advantage of an official uniform or badge in order to facilitate commission of the offence;
12) commission of the offence against a minor with abuse of power or confidence;
13) commission of the offence against the person by an adult in the presence of a minor.
§ 59. Prohibition to repeatedly consider mitigating or aggravating circumstances
The mitigating or aggravating circumstances provided for in §§ 57 and 58 of this Code shall not be considered in imposition of a punishment if they are described by law as the necessary elements of an offence.
§ 60. Mitigation of punishment in cases provided by law
(1) In the cases specified in the General Part of this Code, a court may mitigate the punishment of a person pursuant to the procedure provided for in subsections (2)-(4) of this section.
(2) The maximum rate of a mitigated punishment shall not exceed two-thirds of the maximum rate of the punishment provided by law.
(3) The minimum rate of a mitigated punishment shall be the minimum rate of the corresponding type of punishment provided for in the General Part of this Code.
(4) If the Special Part of this Code prescribes life imprisonment as a punishment for a criminal offence, imprisonment for a term of three to fifteen years shall be imposed in mitigation of the punishment.
§ 60.1. Active remorse
A court may apply the provisions of § 60 or release a person from the punishment if the act committed comprises the necessary elements of a completed offence but the person voluntarily abandons further commission of the act or eliminates the risk in any other manner.
§ 61. Imposition of less onerous punishment than minimum term or rate
(1) Taking into consideration special circumstances, a court or a body conducting extra-judicial proceedings may impose a less onerous punishment than the minimum term or rate provided by law.
(2) If the minimum term of imprisonment provided for in the Special Part of this Code is at least five years, imprisonment shall not be imposed for a term of less than one year.
§ 62. Imposition of principal and supplementary punishments
One principal punishment and one or several supplementary punishments may be imposed for one offence.
§ 63. Imposition of principal punishment for several offences
(1) If a person commits an act which comprises the necessary elements of several offences, one punishment shall be imposed on the person on the basis of the provision of law which prescribes the most onerous punishment.
(2) If a person commits several acts which contain the necessary elements of several criminal offences and he or she has not been previously punished for any of such offences, a punishment shall be imposed separately for each offence and aggregate punishment shall be imposed pursuant to § 64 of this Code.
(3) If a person commits several acts which contain the necessary elements of several misdemeanours, a punishment shall be imposed separately for each misdemeanour.
§ 64. Imposition of aggregate punishment
(1) In the case of principal punishments of the same type, the aggregate punishment shall be imposed by increasing the most onerous of the individual punishments imposed or by considering a lesser punishment to be imposed by imposition of the most onerous one.
(2) If one of the principal punishments imposed is a pecuniary punishment, it shall be executed independently, except in the case provided for in subsection (4) of this section.
(3) An aggregate punishment shall not exceed the sum of the individual punishments imposed or the maximum rate of the most onerous punishment provided for in the corresponding section of the Special Part of this Code.
(4) If life imprisonment is one of the punishments imposed, life imprisonment shall be imposed as the aggregate punishment.
(5) Supplementary punishments of different types shall be executed independently.
§ 65. Subsequent imposition of aggregate punishment
(1) If, after the pronouncement of a conviction, it is ascertained that the offender has committed another criminal offence prior to the pronouncement of the conviction, an aggregate punishment shall be imposed pursuant to the procedure provided for in § 64 of this Code. Punishment served in part or in full pursuant to the previous conviction shall be deducted from the aggregate punishment.
(2) If an offender commits another criminal offence after the pronouncement of the conviction but before the sentence is served in full, the unserved part of the sentence imposed by the previous judgment shall be added to the punishment imposed for the new offence in accordance with the provisions of 64 (2), (4) and (5) of this Code. In such case, the aggregate punishment shall not exceed the maximum term of the given type of punishment.
(3) If any of the punishments constituting a set on the basis of subsection (1) of this section has been substituted or the offender has been released on parole, the court shall determine for the second time, after formation of the aggregate punishment, the procedure for the enforcement thereof either by substituting it, releasing the offender on parole or enforcing the aggregate punishment pursuant to the provisions of § 56 of this Code. If any of the punishments constituting the set is unserved actual imprisonment, actual imprisonment shall be imposed as the aggregate punishment.
§ 66. Serving of sentence in parts
(1) If a court imposes a pecuniary punishment, detention, or imprisonment for a term of up to six months, the court, taking into consideration the situation of the family and the professional activities of the offender and his or her state of health, may order the pecuniary punishment to be paid in instalments or the punishment to be borne in parts. The court shall determine the duration of the imprisonment or detention to be borne consecutively, or the amounts of the instalments of the pecuniary punishment. The duration of imprisonment or detention to be borne consecutively shall be at least two days.
(2) A court or a body conducting extra-judicial proceedings may, with good reason, order a fine payable in instalments.
(3) The term for the execution of a fine payable in instalments or imprisonment or detention to be borne in parts shall not exceed one year.
§ 67. Calculation of terms of punishment
(1) A term of imprisonment shall be calculated in years, months and days.
(2) A term of detention shall be calculated in days. One day of detention corresponds to twenty-four hours.
(3) The term of withdrawal of the right to drive a vehicle imposed as a principal punishment and of supplementary punishments shall be calculated in years and months.
§ 68. Consideration of provisional custody and detention
(1) Provisional custody, including the time spent in provisional arrest and arrest for surrender, shall be included in the term of a punishment. One day of provisional custody corresponds to one day of imprisonment or three daily rates of a pecuniary punishment.
(2) If a person is held in custody in the course of misdemeanour proceedings, it shall be included in the term of a punishment. Twenty-four hours of custody correspond to one day of detention or to ten fine units.
1. In the event of a conviction, the Trial Chamber shall consider the appropriate sentence to be imposed and shall take into account the evidence presented and submissions made during the trial that are relevant to the sentence.
2. Except where article 65 applies and before the completion of the trial, the Trial Chamber may on its own motion and shall, at the request of the Prosecutor or the accused, hold a further hearing to hear any additional evidence or submissions relevant to the sentence, in accordance with the Rules of Procedure and Evidence.
3. Where paragraph 2 applies, any representations under article 75 shall be heard during the further hearing referred to in paragraph 2 and, if necessary, during any additional hearing.
4. The sentence shall be pronounced in public and, wherever possible, in the presence of the accused.