Laura Aiaots
State Prosecutor; Visiting Lecturer in penal law, University of Tartu Faculty of Law
Anneli Soo
Associate Professor, University of Tartu Faculty of Law
The victim is a very important person in the context of penal law. It is, after all, the victim whose legal rights – life, health, assets, and so on – are protected by penal law and on whose behalf the crusade known as criminal procedure is undertaken. The sufferings of the victim are reflected in both the punishment meted out on the basis of the magnitude of the culpability of the accused and damages awarded as a result of civil action. For a victim’s tribulations to be fairly reflected by the punishment (and restitution), penal law must inevitably deal with a very sensitive but necessary question – the role of the victim in the crime committed.
Just like life itself is not black and white and there is often not just one guilty party in a conflict, the commission of a crime or the damage created thereby may not have been incited by solely the accused’s actions. It is the task of penal law to distinguish situations in which the victim’s contribution to the crime has been socially inadequate (such as walking through a dark and dangerous park, wearing excessively scanty clothing, leaving the door to one’s house unlocked etc,) of situations where it was socially and ethically censurable or downright unlawful. While the above circumstances do not change the liability of the accused under penal law, others may be mitigating circumstances (see clause 57 /1 (6) of the Penal Code) or even vindicate them by denying the status of victim to the “victim” (e.g. Section 28 of the Penal Code).
The Penal Code includes rather few aspects or institutions that define the role of the victim, though. As to whether and in what cases a person can be treated as a victim, this has been dealt with over time in the practice of the Supreme Court. Nevertheless, the question has been dealt with above all on the basis of an institution (e.g. legitimate self-defence in an emergency) and case. The most recent signal decision in this field was the so-called malicious neighbour case from last year.[1] Although every institution in penal law has its own separate significance, together the various institutions must make up a system. Our goal is to map the latest directions in Supreme Court practice in regard to conferring victim status on a person and to analyse what sort of effect these directions have on the penal law system. To begin with, though, we explain why the role of victim should be considered in the first place.
The responsibility of the victim to penal law and society
The victim has not always had such a large and conspicuous role as it does now. During Napoleon’s time, victims and their claims were removed to civil courts and the state began adjudicating the criminal matters on their behalf. Victims remained largely in the role of witnesses. Nevertheless the position of the victim began gradually changing in the 1980s.[2] In the last few decades, a rapid shift has taken place. While the EU framework decision[3] of 2001 included a few procedural rights for victims (above all, the right to obtain information), a great many of the rights can be found in the EU directive of[4] 2012 (among others, the right to a representative, right to translation, right to obtain information about the cost of the matter etc.). The victim has long ceased to be merely a witness in criminal procedure but sometimes is nearly an equal partner to the prosecutor. Criminal procedure does not decide only the question of the fault of the person committing the crime but also the compensation of damage to the victim. There is also a new direction – that of restorative justice, which albeit still on extremely limited conditions, considers the wishes of the victim to resolve the conflict in a suitable manner as a settlement outside the criminal courts.
The improvement of the standing of victims in criminal procedure is not solely the outcome of the untiring work of victims rights advocacy groups. The flourishing of the idea of revenge that accompanied the fading of so-called treatment ideology in the late 1970s (the keyword being Martinson’s nothing works) spawned political rhetoric “in the name of the victim”. Calls to more harshly punish, because this is something that victims want or because it is said to be necessary for preventing new crimes (read: preventing new suffering) either by intimidating the accused or isolating them from society are not unknown in Estonia, either. Although empirical research does not confirm the image of the bloodthirsty victim or that increasingly harsher punishments would increase the well-being of victims, this does not keep politicians from continuing the same tack.[5] True, there are (in Estonia as well) examples of such victims who do call for very harsh punishment in their matters in the name of retribution, but there are no indications that the majority of victims feel this way. Still, it appears that populist political rhetoric is built on more favourable cases – cases where victim(s) call for harsh punishment.
Calling for harsh punishment in the name of the victim is extremely easy also because the currently prevalent idea of a “risk society” holds that penal law happens to be one of the main instruments of prevention.[6] Prevention is something that speaks to nearly every one of us. Phenomena that were largely inconceivable earlier have now become widespread, such as crime defined on preventive criteria (the criminalization of the premeditation of conduct) and post-punishment preventive detention, all for the purposes of our collective safety. Abstract risk delicts, whose likelihood of culminating as a delict of consequence is sometimes quite low, have also been hitched to the cart of punitive rhetoric, in which all of us have been turned into victims. These are consistently presented as actions that jeopardize each one of us directly and constantly, and which necessitate a severe response (e.g. the approach to traffic offences, especially drunk driving). It’s as if it does not matter how members of society actually view punishment and sentences and whether they have shaped their attitude consciously and based on knowledge. The matter is clear in the court of public opinion: those who actually care about victims (i.e., us), as the argument goes, will call for severe punishment on their behalf: those who do not call for such punishment must not care about the suffering of victims.[7]
The dichotomy of victims and accused and giving priority to the rights and needs of victims may strike a sympathetic chord in political discourse, but is in fact extremely problematic. Saunders and others provide a clear overview of the problems.[8]
First, all victims do not tell the truth. There is false testimony, distortion of the truth for their own benefit, mitigating or denying their role in the incident or inflating the magnitude of their injury etc. Sometimes a person is interested in the role of victim to complicate another person’s life with criminal proceedings. This is a low opportunity-cost avenue, since all it takes is a skilfully filed claim to trigger criminal proceedings that can pose a major obstacle to the subject of the proceedings in terms of their independent life, emotional disruption or major expenses. The fact that making a false accusation is a crime under Section 319 of the Penal Code should theoretically prevent such behaviour. But in fact this provision in the Penal Code is not a guarantee that people will not act this way. Thus, every criminal complaint or conduct during the criminal proceedings may not stem from good intentions. Consequently, the approach that gives absolute credence to the victim and treats them with kid gloves may result in unfair conclusions being drawn and is extremely unjust.[9] In order for victims to justify the role that has been accorded them over time, they should be conscientious actors in criminal proceedings, refrain from making excessive claims, misleading statements, excessive emotions and clinging to the past.[10] But people are only human and not all victims meet this ideal, and hence the system should inevitably verify the victim’s claims and reject the related criticisms that the “state does not care” and “the victim must run an unjustified gauntlet“.
Secondly, we all may find ourselves in a situation where we are no longer victims but in fact, with or without reason, suspects.[11] An abstract risk delict (e.g. some traffic offence, such as speeding) may, due to an unfortunate coincidence, quickly culminate in a delict of consequence (a traffic accident involving a victim), miscalculation at the workplace may become an on-the-job accident and a conflict between neighbours may lead to colourful versions advanced by the counterparty concerning all of the criminal deeds purportedly perpetrated by the accused. In such a situation, we all want to be heard out and not branded “them”, someone whose positions are worthless or at the least insignificant compared to the victim for the reason that they have suddenly been included in “their” group. The us vs. them approach is rendered particularly curious by the fact that on quite a few occasions, the roles of victim and suspect have merged so totally that they can be distinguished only in a specific proceeding, not in the broader view. Numerous empirical studies have shown a strong correlation between becoming a victim and later unlawful action.[12] In other words: someone who in one incident is a victim may be a criminal in the next incident. On one occasion, they are placed on a pedestal and on the next they are dragged through the mud although the person is the same. Where is the logic in all of this?
Assessing the role of the victim in a specific crime is not solely appropriate to the state governed by the rule of law but also helps to protect every one of us. We never know when we may wind up the victim of a malicious or otherwise unjust accusation. If we proceed solely from what the victim claims we have done, and do not look at the broader context, including the behaviour of the victim, the justice system will let us down, and it will also disappoint the entire society. Although it is a sensitive topic and downright unacceptable for certain interest groups, it is something that cannot be ignored.
The victim is important but should not be inviolate. Yes, penal law is in the service of the victim but not to an unlimited degree. The victim is responsible for not exploiting penal law for their own benefit, and law enforcement has the duty to make sure that the victim does not do so. The possibilities afforded by both procedural and substantive law are at the disposal of law enforcement bodies. In terms of procedural law, it must be assessed whether the person’s complaint and their statements are reliable. In terms of substantive law, meanwhile, the meaningful question is from what point on the action of the victim is unlawful or otherwise has a bearing on the liability of the accused. In the following, we will focus on analysis of Estonian Supreme Court jurisprudence in assessing the conduct of the victim.
The victim’s contribution to the commission of a crime, in Supreme Court jurisprudence
The consideration of the victim’s behaviour proceeds from the principle of personal responsibility, based on which everyone is liable for their behaviour alone. Deliberately jeopardizing the individual legal rights of a person capable of taking responsibility is the autonomous decision of the person who bears the legal right. The legal system is based on the understanding that a person capable of responsibility must devote a reasonable level of attentiveness and care to protecting their legal rights.[13] In Supreme Court practice, the behaviour of the victim is taken into consideration above all in the context of objective attribution, but also in regard to factors that exclude unlawfulness, factors that mitigate or aggravate punishment, and likewise in regard to awarding damages.
The recent “malicious neighbour” matter heard by the Supreme Court points out how difficult it can be to distinguish the victim and the accused in a specific situation. The central figures in this case were the residents of a house co-owned by four persons. One of the neighbours, whom we will call A, had complicated relations with the others: he acted in a harassing, destructive and sometimes seemingly unhinged manner as far back as 2013. A’s behaviour was not limited to simply being nasty without making physical contact, there was sometimes “accidental” violence (such as with a snow shovel against the legs of someone passing by). One source of disagreement concerned the use of the courtyard area: the court approved rules of use at the request of the residents, determining the areas in exclusive and common use. After the court proceedings, the neighbours repeatedly asked A, both orally and in a letter, that he remove part of the flowerbed that was in the area designated for common use, but A refused. One day A noticed that his flowerbed was gone. He began throwing stones that had replaced the flowerbed on the exclusive use area of E and T. E and T were outdoors with their children. One of the stones barely missed hitting E. T went up to A and asked why he was throwing stones. A answered the question in a loud voice, pushed T in the chest and made a kneeing motion at him. T took a step back. A took a step closer, telling T to get lost and made a hip-checking motion directed at T. At that point, T shoved A, who fell, saying he was hurt and injured: a bruise on his buttocks.
The criminal case launched in regard to the conflict shows that A was very interested in being the victim and wanted T to be treated as the accused, so that T would be punished and A would be awarded compensation. Indeed, courts of both the first and second instance found T guilty, focusing on the specific conflict where the shoving occurred, and noted that due to the lack of an immediate unlawful assault by A, T was not justified in responding with violence. The Supreme Court however acquitted T, stating that one form of deliberate self-endangerment is provocation, which excludes the objective attribution of a consequence. To this point, provocation had had a bearing in the event of circumstances that exclude unlawfulness, specifically as a factor limiting the right of self-defence[14] and emergency rescue actions, manslaughter in a provoked state for the purposes of Section 115 of the Penal Code and a mitigating factor for the purposes of clause 57 (1) 6) and subsection 57 (2) of the Penal Code. In the malicious neighbour case, the Supreme Court ruled that provocation, constituting deliberate self-endangerment, may – even if the objective elements of a crime are satisfied – completely rule out finding fault with the perpetrator, as a result of which the person on the receiving end of the violence cannot be treated as a victim.
It can be argued that this is quite a fair decision in the context of this specific incident. It would seem odd for the state to have to side with someone who was picking a fight and trying to flip the criminal proceeding in their own favour. But the question arises as to whether in engaging with the instigator, the act set forth in the Penal Code can now be realized without the preconditions for self-defence being satisfied. For years, it has been emphasized in judicial practice that solely a self-defence situation allows a harasser’s legal rights to be harmed through the commission of a crime. This position is closely related to the principle of the attacker’s conscientiousness, according to which the attacker must tolerate a provocation unless it is an active assault.[15] In other words: in general, people should resolve conflicts by means other than by harming the other person’s legal rights. The question justifiably arises: what impact do the criteria cited in the case of the malicious neighbour have on the hitherto rock-solid position and penal law system as a whole.
Before we analyse why the Supreme Court treated provocation as objective attribution and why this new approach has a broader implication, we will need to explain what objective attribution is and how it is connected to a victim’s behaviour.
Objective attribution is a criterion in the objective elements necessary to constitute an offence. It is not explicitly stated in law but was developed in penal law theory and in use in Estonian judicial practice. It applies only to delicts of consequence, not to delicts of action. The concept’s point of departure stems from the idea that changes in the external world causally connected to the perpetrator’s behaviour must constitute the realization of precisely the danger created by the perpetrator as a consequence consistent with the objective elements of an offence. In essence, the question that needs to be answered is whether, on the basis of general life experience, there is a basis for considering it possible or likely that a person’s conduct will unleash precisely a causal chain that culminates in the satisfaction of some consequence consistent with the objective elements of an offence. The point of posing an additional requirement is to restrict the extremely broad area of applicability of equivalency theory and deny that objective elements of a crime have become realized in, e.g. unusual causal chains or incidents with legally accepted threat situations.[16] One criterion of objective attribution is related to the victim’s own conduct. More precisely, objective attribution can be excluded by the victim’s own inappropriate behaviour and jeopardizing their own individual legal rights – i.e. (deliberate) self-endangerment. In such a case, it can be argued that the victim made such a major contribution to the event’s course that there is no longer grounds to treat the consequence as the act of the person committing it but rather that it is the result of the behaviour of precisely the victim.
Note: While it is evident from the above that the victim’s malicious and provocative behaviour makes it impossible to find fault with the perpetrator, previous Supreme Court practice holds that far less unjust conduct by the victim – even lawful actions of the victim – is also meaningful. Inappropriate conduct by the victim and deliberate self-endangerment may manifest in the victim violating the behavioural code intended for certain situations. So, for example, a road user has the duty to use a seatbelt and failure to buckle up, as inappropriate behaviour, shows the person’s acceptance of self-endangerment. Still, unlike the case of malicious provocation, it cannot necessarily be concluded from inappropriate behaviour that there is no grounds to treat a person as a victim at all, but rather it should be assessed how much weight the inappropriate conduct has: whether, in the absence of the victim’s act, the damage would have occurred anyway or would it have had a much lower degree of severity.[17] Consequently, the inappropriate conduct by the victim is an important aspect for evaluating whether the victim has deliberately decided to harm themselves but at the same time it is not a required condition for establishing that there was deliberate self-endangerment.[18] Deliberate self-endangerment can also occur when the victim’s behaviour does not violate any rule or standard and expresses only that the victim does not wish to defend its legal rights and is prepared to harm them. For example, deliberate self-endangerment is involved if the person waives medical care after a crime has been committed, knowing that at the least, their life may be at real risk as a consequence of such a decision.[19] Whether the victim’s conduct is inappropriate or whether the victim is deliberately endangering themselves, two conditions must be fulfilled: the corresponding decision by the victim must be deliberate and voluntary.[20]
Having made this digression into objective attribution and the victim’s role in conforming to it, let us now come back to provocation by a victim. The malicious neighbour decision notes the criteria whereby provocation and reaction to the provocation satisfy the requirements of deliberate self-endangerment, thus excluding objective attribution of consequence. Insofar as provocation and the ensuing reaction to it have implications for self-defence, we will look at two situations comparatively.
For one thing, any sort of provocation does not rule out objective attribution – for that to happen, the provocation must be intentional and, in certain conditions, wrongful as well.[21] In the malicious neighbour case, the Supreme Court proceeded in determining the substance of intentional and wrongful provocation from a decision dealing with provocation in a state of legitimate self-defence. According to this approach, a person uses deliberate provocation to purposefully and intentionally provoke an attack against them.[22] In the case of wrongful provocation, the person causes an attack against their own legal rights through unlawful and/or socio-ethically censurable behaviour; however, provoking an attack was not their objective[23]. Wrongful provocation can be treated as a precondition for deliberate self-endangerment if the person’s conduct is characterized by deliberate action (while falling short of deliberately provoking an attack), for example, intentionally irritating and goading other person(s) and doing so over a longer period.[24] It should be remembered that legitimate and socially appropriate actions cannot be considered provocation at all, rather the person is obliged to tolerate such actions regardless of why the other person is committing them and whether the person likes them or not. In the case of the malicious neighbour, the Supreme Court affirmed that wrongful provocation was involved – in the court’s judgment it was expressed in the fact that a neighbour had a pattern of goading and irritating the other residents and created and escalated conflicts.[25]
Secondly, to establish provocation, it is important to evaluate, not only the individual incident (the specific action for which the person is held to account) but the specific chain of events and the context of the interpersonal relations.[26] Here, too, the Supreme Court’s approach to provocation at the level of objective attribution and unlawfulness coincide.[27] The malicious neighbour decision describes the victim’s years-long pattern of picking fights and his behaviour in the specific conflict situation.
Third, the malicious neighbour case shows that there must be a close temporal and, generally, spatial connection between the provocative and provoked act to distinguish it from, e.g., later revenge.[28] The temporal and spatial connection between provocation and reaction is also something the Supreme Court has required in self-defence cases.[29] In the case of the malicious neighbour, the Supreme Court concluded that the response had a close temporal and spatial connection to the provocation – picking up a stone and going up to the victim – this was directly caused by years-long and accumulated destructive behaviour that did not take neighbours into consideration. One of the manifestations was also the wild throwing of stones – dangerous as well, in the judgment of the court – toward the outdoor area in the exclusive use of the accused. When the accused had come up to the victim, it was the victim who instigated the ensuing physical contact. Namely, before the response from the perpetrator, the victim had managed to push them away twice, kick them and make a hip-checking motion.[30] Although the circuit court concluded that the circumstances dealt with above did not occasion an immediate or imminent attack, the Supreme Court did not deal with this issue. The circuit court however concluded that there was no immediate or imminent attack in the case of the malicious neighbour.
Fourth, the reaction that follows the provocation must be, taking into account the nature of the provocation and related circumstances, expected and appropriate and must not exceed the provocation.[31] In the case of the malicious neighbour, the perpetrator responded to the shoving and gesture of striking a blow made by the victim by shoving, which the Supreme Court saw as an appropriate response to the intentional conduct on the part of the victim. The Supreme Court added that all indications were that the victim expected and hoped for precisely this type of response from the accused.[32] A similar position can be found in the institution of legitimate self-defence. Although this topic has in essence not been treated in judicial practice, literature on the law has emphasized that to the extent that a provoker did not deliberately provoke, the provoker should have the right to defend themselves on the basis of the general rules on self-defence (subsection 28 (1) of the Penal Code).[33]
Fifth, in neither the case of the institution of objective attribution or self-defence is it required that the provocative conduct lead to a provoked state as required under Section 115 of the Penal Code. It is important solely to ascertain that the commission of the act defined in the Penal Code was based precisely on the previous behaviour of the victim.
The significance of the expansion of the scope of use of objective attribution
From the above, we see that the Supreme Court did not introduce anything new into the concept of provocation. But the Supreme Court decision is novel in the sense of which rung of the delict structure provocation is treated at, and what the consequences of establishing provocation is. Let us explain further.
In future, provocation as a circumstance excluding objective attribution may coincide with an unlawful attack that triggers the right of self-defence. To illustrate this example, let us modify the facts of the case at hand slightly.
Let us suppose that T shoved A because A raised his fist in a threatening gesture and was ready to strike T. In such a case, A’s action is consistent with characteristics of both provocation, which is of interest from the perspective of objective attribution, and of repelling an unlawful attack. Thus, preconditions of both exclusion of objective attribution and the use of self-defence are satisfied. When it comes to holding a person liable under penal law, everything must start with objective elements of an offence, and one of these elements, as covered above, is objective attribution. Insofar as objective attribution can be ruled out in this case, because the “victim” was involved in deliberate self-endangerment, there is no need to evaluate the unlawfulness level. Yet the right of self-defence does not completely lose significance. Namely, in the context of objective attribution, the response must be expected and appropriate. If this boundary is crossed, objective attribution is not ruled out. For example, it can be argued that it would not be expected or appropriate if T responded to A’s attack by stabbing him in the abdomen. In such a case, T’s right of self-defence would have to be evaluated, because in itself, the self-defence principle does permit an attacker to be harmed to an extent greater than the loss or damage to which the person being attacked was exposed.[34] Consequently, following the case of the malicious neighbour, in cases where the provocation also constitutes an unlawful attack, some situations can be resolved by excluding objective attribution. In cases where the reaction is not commensurate to the provocation, it must be evaluated at the level of unlawfulness whether the defensive action lay within the constraints of the right of legitimate self-defence. Before the malicious neighbour case, provocation did not have any significance in the case of objective attribution. Our assertion is based on an incident where the victim provoked the perpetrator so that the latter was in a provoked state and by killing the victim, the perpetrator realized the objective elements of Section 115 of the Penal Code, manslaughter in a provoked state.[35] The Supreme Court viewed the conduct of the victim as an intermittent attack and maintained that the right of self-defence was exercised in line with the requirements of legitimate self-defence. In the case referred to, provocation was established; the provocation triggered a reaction from the perpetrator, but the Supreme Court did not analyse it in the context of objective attribution but rather in the context of the right of self-defence.
Although the solution in the case of the malicious neighbour causes its fair share of confusion in situations where provocation is simultaneously also an unlawful attack, it has its greatest impact in cases where there is no immediate attack in the context of the right of self-defence. In the past, such a provocation had two meanings.
First of all, if the provoked party “attacked” the “victim”, this, in the case of deliberate provocation, excluded the victim’s (the provoker’s) right of self-defence (i.e., the victim has no right to defend themselves against the person responding to the provocation) and in the case of wrongful provocation, the instigator’s right to exercise their right of self-defence was limited.
Secondly, while this did not exclude, it did have a bearing on the punishment meted out to the person responding to the provocation in the event of the victim’s death in accordance with the Penal Code section 115 or on the basis of subsection 57 (1) on manslaughter in a provoked state (if provocation was caused by a suddenly occurring provoked state) or on the basis of subsection 57 (2) of the Penal Code (if not accompanied by a suddenly occurring provoked state).[36] On the basis of earlier judicial practice, the case of the malicious neighbour would have also culminated in a similar resolution. If the Supreme Court had not established an unlawful attack on the part of A, it would have no other option but to apply a mitigating factor when it comes to punishment (A did not in turn defend himself against T, thus this facet of the provocation would not have had to be treated). This however would have significantly infringed on the general sense of justice and supported “victims” who maliciously exploit the penal law system.
Nevertheless, the Supreme Court left one important step untaken: it did not evaluate whether T was in a state of legitimate self-defence, which regardless of the fact that the circuit court had denied it, may have been affirmed in spite of everything, considering the facts of the case. After all, it could be argued that proceeding from the three-tiered delict structure, the Supreme Court should not be faulted for not evaluating self-defence, since the court already excluded the objective elements of the offence. Still, from the aspect of the novelty of the decision, it would have been important to note in what respect, in the case of self-defence, the provocation situation differed from self-defence exercised in an intermittent attack situation. Furthermore, the question could be raised in the malicious neighbour case why the faulting of the perpetrator was not excluded on the grounds that the perpetrator’s action and the resulting consequence were outside the scope of Section 121 of the Penal Code. Both judicial practice and legal theory have stressed the need to curb Section 121 of the Penal Code.[37] In this particular case, a bruise was involved, something that typically heals by itself and the intensity and duration of the perpetrator’s action – shoving – did not cross the line of a trifle. Even in the case of pain, it can be asked whether the pain had relevance from the standpoint of penal law. If there is any fault to be found with this decision, it is not an unjust outcome, but the fact that it is not clear why a new and quite unusual legal institution has been created, which will in all likelihood create much confusion in terms of its relationship to other institutions. We see one of the most significant questionable aspects in the following:
While in the malicious neighbour case saw years of spiteful action and a specific conflict culminate in a very mild act of violence, which the Supreme Court deemed an appropriate (adekvaatne) response to a provocation, the same sort of appropriateness can be affirmed in the case of much more severe actions. The question arises of whether in these cases, too, there would be reason to argue that objective attribution is excluded and that there was in fact no reason to treat the instigator as victim, although the victim sustained a severe injury or was killed. But would the solution be fair in such a case as well? Let us take the following example.
For years, C has degraded and beaten his spouse B and repeatedly caused life-threatening injuries to her. In the next episode, C struck B and caused to her a life-threatening injury due to which B moans from the pain. C then turns his back and says enough and starts reading the newspaper. B, who is tired of the long mistreatment and wishes to avoid such cases in future, summons her strength and stabs C while he is seated, causing a life-threatening injury or killing him. This case without a doubt involved a pattern of earlier wrongful provocation, which occurred both in the specific incident and over a longer period of time preceding it. There is also a direct temporal and spatial connection with the provocation, which in this specific case consisted of violence and cursing both during the previous time period and immediately before B’s attack. Considering the nature of the preceding long-term and severe provocation, B’s action does not exceed the provocation, since B responded to the causing of a life-threatening injury by causing a life-threatening injury. Even if B caused the death of C, it is possible to argue that it was an appropriate and an expected consequence, considering the nature of the provocation.
Based on the above, we can on the basis of the malicious neighbour case, reach the conclusion that the consequence was not objectively attributable to B and that there is no grounds for treating the person who provoked the act as a victim. Prior to the malicious neighbour case, however, B could have been held liable under Section 115 of the Penal Code on condition that she was in a provoked state or her punishment might have been lightened. In any case, the person who provoked the acts would have seen as a victim. B’s liability would have been excluded due to the right of self-defence only if she had been reacting to an unlawful attack. In the example above, though, the attack had already ceased for that time.
The malicious neighbour case will create significant confusion in taking into account the malicious contribution made by the victim. Should this be done at the level of objective attribution or unlawfulness? Similar problems have arisen before.
For example, it was previously already quite hard to distinguish the victim’s deliberate and voluntary self-endangerment as a factor with a bearing on objective attribution and as a factor constituting consent and excluding unlawfulness. Although similar in content, they lead to a completely different outcome. Namely, in the case of objective attribution, the victim’s consent excludes the harming of any legal right, including being held at fault for a death, the victim’s consent does not have such a broad effect as a factor excluding unlawfulness. In judicial practice, the victim’s consent in the case of circumstances that exclude unlawfulness has been analysed in the context of Section 121 of the Penal Code and the conclusion has been reached that in the case of the objective elements of an offence referred to, the victim’s consent may indeed exclude unlawfulness.[38] There is a consensus in jurisprudence that the victim cannot grant consent to be deprived of life or for the causing of a severe injury to them.[39] In the past, the Supreme Court saw the victim’s consent as deliberate self-endangerment in a situation where all of the participants in a fight assume that the attacker and defender’s positions are constantly reversed and the possibility of sustaining a health injury, as a circumstance not specifically codified in the Penal Code but and which transcends law and excludes unlawfulness.[40] The decision treated above was referred to in the malicious neighbour case as well as in previous judicial practice and it was noted that the reciprocal fight may indicate deliberate self-endangerment and exclude attribution of consequence.[41] Said judicial practice raises the question of whether victim’s consent, which used to be a circumstance that excluded unlawfulness, should now instead be evaluated in the context of objective attribution.
German penal law has found that although both objective attribution and a circumstance that excludes unlawfulness contain the conditions “deliberate” and “voluntary”, these are not identical situations. In the case of objective attribution, the victim endangers themselves deliberately. As a circumstance that excludes unlawfulness, the person grants consent for their legal rights to be harmed. Consequently, in order to assess whether the consent can be treated as a circumstance that excludes unlawfulness or in the context of objective attribution, the significance of the contribution of the victim to the course of the causal chain is important. For objective attribution, the victim must take over the causal chain and become the executive actor.[42] The Estonian Supreme Court, too, notes that to exclude objective attribution of the consequence, the victim must govern the act.[43] At the same time, the Supreme Court has not analysed whether the criterion referred to can be used to distinguish the victim’s deliberate and voluntary self-endangerment in the case of objective attribution from consent in the case of unlawfulness. The above shows that it is complicated to distinguish objective attribution elements from other elements, above all those that exclude unlawfulness. Judicial practice is moving in the direction of increasingly trying to consider the behaviour of the victim in the context of objective attribution but it remains unclear how the new approach will affect the current system, considering that some of the elements overlap, for example victim’s consent and provocation.
Conclusion
One of the challenges in development of penal law is to create criteria of universal applicability and which would not solely offer a just solution for a specific case but for an indefinite number of cases. It is important to assess the existing toolbox and decide whether it is sufficient or something should be added so that the new and existing components make up a coherent system. Penal law is tasked precisely with aspiring to ensure that all of the important aspects in the parties’ behaviour have been taken into account, because in most situations, one is not absolutely good and the other bad. In a specific case, penal law must help to make a decision on whether the participant was the culprit or victim and based on that fact, restrict their fundamental freedoms or protect their legal rights.
The malicious neighbour decision shows clearly that there is no basis for according victim status to a person whose mischief creates a criminal situation. In such a situation, the person is not a victim but the cause of deleterious consequences, because it is precisely their provocation that set off a chain of events resulting in deleterious consequences for themselves. Great caution should however be taken with the course of resolution alluded to, as it may instead end up encouraging the commission of crimes. If a crime is permitted to be committed too cavalierly in response to a socioethically condemnable act, this may foster the view that it is not only allowed to resort to physical violence in a conflict but that in fact the state condones it as one appropriate way of resolving problems. In the case of the malicious neighbour, the Supreme Court set the limiting criterion that the reaction to the provocation must be expected and appropriate. But it is not clear what this exactly means and whether this will also substantively enable the act to be defined. Based on the above, it can be said that although, taken individually the case of the malicious neighbour tends to align with general sense of justice, it unfortunately has a significant bearing on the approach to objective attribution and the existing penal law system in general.
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[1] RKKKo 1-20-3046/33.
[2] J. Keiler, D. Roef (eds.). Comparative Concepts of Criminal Law. 3rd printing. Intersentia, 2019, p. 31.
[3] Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA).
[4] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crimes and replacing Council Framework Decision 2001/220/JHA.
[5] Overview of the corresponding empirical studies and the role of the victim in populism can be found in A. Pemberton. “Too Readily Dismissed? A Victimological Perspective on Penal Populism“ in the work H. Nelen, J. Claessen (ed.), Beyond the Death Penalty. Reflections on Punishment. Intersentia, 2012, pp. 105–119.
[6] Sociologist U. Beck introduced the term “risk society”: U. Beck. Risk Society: Towards a New Modernity. Sage, 1992; U. Beck. World Risk Society. Polity Press, 1999.
[7] A vivid example of this attitude can be seen in the debate on broadening the delictual elements of rape. See a summarization in an article by Paavo Randma: is the use of prostitute’s services rape? 09.08.2021, err.ee. – https://www.err.ee/1608301995/paavo-randma-kas-prostituudi-teenuse-kasutamine-on-vagistamine (08.02.2022).
[8] A. Sanders, R. Young, M. Burton. Criminal Justice, 4th printing. Oxford University Press, 2010.
[9] Ibid, p. 45.
[10] B. van Stokkom. ”A ’Natural Right’ to Revenge? Victim Impact Statements and Penal Populism“ in H. Nelen, J. Claessen (ed.), Beyond the Death Penalty. Reflections on Punishment. Intersentia, 2012, p. 136.
[11] A. Sanders, R. Young, M. Burton. Criminal Justice, 4th printing. Oxford University Press, 2010, p. 52.
[12] M. T. Berg, C. J. Schreck. The Meaning of the Victim–Offender Overlap for Criminological Theory and Crime Prevention Policy. Annu. Rev. Criminol. 2022. 5:8.1–8.21.
[13] RKKKm 3-1-1-87-15, p 14.
[14] RKKKo 3-1-1-95-06, p 13; RKKKo 1-20-3535/52, p 15.
[15] K. Kühl, Strafrecht. Allgemeiner Teil. 8 Auflage. Munich: Vahlen 2017, p. 228.
[16] RKKKo 3-1-1-102-16, p 9; RKKKo 1-19-4422/107, p 13.
[17] RKKKm 3-1-1-87-15, p 14.
[18] See critique on this subject: A. Soo, B. Sisask. The causal connection as grounds for criminal liability in Estonia jurisprudence and Supreme Court practice: answered and unanswered questions. –Juridica 2020/4, p. 268 etc.
[19] RKKKo 3-1-1-102-16, p 12.
[20] J. Sootak. General part of penal law. Tallinn: Juura 2018, p. 226; RKKKo 3-1-1-102-16, p-d 11–12, RKKKo 3-1-1-60-10, p 17.2, RKKKo 3-1-1-87-15, p 15.
[21] RKKKo 1-20-3046/33, p 36.
[22] RKKKo 1-20-3535/52, p 16.
[23] RKKKo 1-20-3535/52, p 17.
[24] RKKKo 1-20-3046/33, p 38.
[25] RKKKo 1-20-3046/33, p 39.
[26] RKKKo 1-19-1849/43, p 25; RKKKo 1-20-3046/33, p 33.
[27] For more on legitimate self-defence, see also e.g. RKKKo 3-1-1-26-11, p 16; RKKKo 3-1-1-124-01, p 7.2.
[28] RKKKo 1-20-3046/33, p 38.
[29] RKKKo 1-20-3535/52, p 19.
[30] RKKKo 1-20-3046/33, p-d 39–40.
[31] RKKKo 1-20-3046/33, p 40.
[32] RKKKo 1-20-3046/33, p 40.
[33] J. Sootak, p. 325.
[34] RKKKo 3-1-1-111-04 p-d 14–15.
[35] RKKKo 1-19-8038/67.
[36] RKKKo 3-1-1-72-16, p 6.
[37] For more detail, see P. Randma. Kehaline väärkohtlemine karistusseadustiku uues redaktsioonis. – Juridica 2015/3, pp. 210–218.
[38] RKKKo 3-1-1-60-10, p 17.2.
[39] J. Sootak, p. 350; U. Murmann, U. Grundkurs Strafrecht. 4 Auflage. Munich: Beck 2017, p. 282.
[40] RKKKo 3-1-1-60-10, p 17.2.
[41] RKKKo 3-1-1-102-16, p 11, RKKKm 3-1-1-87-15, p 14, RKKKKo 1-20-3046/33, p 37.
[42] U. Murman, p. 183, 191; R. Reniger. Strafrecht Allgemeiner Teil, 12 Auflage. Munich: Beck 2020, pp. 95–96.
[43] RKKKo 3-1-1-102-16, p 11.