BRRLN Corner

“ESTONIA – a Civil Law Country with a fully Common Law Plea Barganing System”

Posted on 07.07.2016 16:13:00

Jordan Daci is a licenced lawyer from Albania. Last year, the Balkan Regional Rule of Law Network (BRRLN) awarded him a study exchange grant in Estonia starting from December 8 until December 12 as a part of the exchange program funded by USAID through BRRLN. This article is about his insights from the exchange and his motivation to do it. Please see the full text of the interview that was conducted with Mr. Daci on July 6. was totally different experience for me. Main reasons for applying for this study visit and for picking up Estonia was related with the recent developments in the Balkans countries where this new institution of the Criminal Justice has been introduced and there are also plans to introduce it in Albania too. During my pre-application research, it turned out that Estonia was the only civil law country who had apply almost a fully common law plea bargaining system. In addition, they were also a former communist country and consequently an inquisitorial system just like Albania and the rest of Balkan’s countries.

Moreover, Estonia has a very functional plea bargaining system introduced more than a decade ago. Its legal framework has been amended several times reflecting some key issues that were identified by parties and in their case law. The first thing to be highlighted was the common understanding between all stakeholders from the point of view of courts, prosecution office and members of the bar about the important of this institution and the benefits that the criminal justice system has profited through its implementation. The second thing, all stakeholders identified several same issues especially the involvement of the victims in this special proc edure and how to accommodate their interest within the general interest of applying this institution without making it inefficient. The third thing to be highlighted but certainly not the least was a good coordination of my trip, their hospitality and their readiness to be useful as much as they could. From the meeting, I can also highlight an excellent IT system court system who facilitated a lot the court role and parties interactions via electronic means as well as ensured a national platform that makes easier to set national common standards among all courts etc.

Estonia has applied a full common law system. The plea bargaining can be reached with the prosecution proposal or defendant or his defense request. The victim consensus to proceed with a plea bargaining is a legal perquisite. After that the court can review the legal merits of this plea bargaining sole under exceptional circumstances. It is important to stress out that this plea bargaining is just one of the special procedure and does not exclude other existing special procedure such as speedy trial etc. According to interviews sole less than 10-15% or plea bargaining are modified or return for further amendment or found not valid by the court.

The country is the best example of combining the safe and functionality of the criminal justice system with a functional plea bargaining system which accommodated properly the rights of parties and secure an equilibrated role of the court who makes sure that the law is properly applied. The only thing that they still are trying to come up with a working solution is how to accommodate the victim in this process, without jeopardizing the application of the plea bargaining and its benefits as well as to secure the rights of the defendant. Certainly its experience especially with the issues that have been addressed via several amendments are something to be considered carefully by any country before adopting any legal framework on plea bargaining. 

As an input from the exchange I am finishing a paper that will be published in English in which will be analyzed Estonian experience and make comparison with some already existing legal framework on the Balkans such as Kosovo, Macedonia and especially the US who has the longest and richest experience in plea bargaining. A special focus will be on the possibility of introduction of this institution in Albania and what are the main issues to be address and what the main technical solutions to all of them are.  

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